Opinion
J-S47012-16 No. 2116 MDA 2015
09-15-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR D. DIAZ-PERDOMO, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 13, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001103-2012 BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ. MEMORANDUM BY SHOGAN, J.:
Appellant, Omar D. Diaz-Perdomo, appeals from the November 13, 2015 order, dismissing his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we reverse the order denying PCRA relief, vacate the judgment of sentence, and remand for resentencing.
The PCRA court summarized the salient procedural history as follows:
[Appellant] was charged with Possession with Intent to Deliver a Controlled Substance (Count 1-morphine sulfate pills), two counts of Possession of a Controlled Substance (Count 2-morphine sulfate pills and Count 3-cocaine) and Possession of Drug Paraphernalia (Count 4-plastic straw). The drugs and paraphernalia were found during searches conducted at the scene of [Appellant's] arrest, at Central Booking, and at [Appellant's] residence on April 19, 2012. After a jury trial on April 3, 2013, [Appellant] was convicted of all charges. He was sentenced to an aggregate term of thirty-nine to seventy-eight months in a state correctional institution on June 12, 2013. Post-Sentence Motions were denied by Order of October 22,
2013 and the Pennsylvania Superior Court affirmed on August 15, 2014.PCRA Court Opinion, 11/13/15, at 1-2 (footnote omitted).
On October 27, 2014, [Appellant] filed a Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. After PCRA counsel was appointed, he filed an Amended Petition on February 2, 2015 and a Second Amended Petition on April 8, 2015. [Appellant] asserts ineffective assistance of counsel on the part of his trial counsel and also assigns error to our failure to appoint conflict counsel to represent him due to his problems in his dealings with trial counsel. We conducted a hearing on June 25, 2015, both parties have submitted Briefs, and the matter is now before us for resolution.
The PCRA court denied Appellant's request for collateral relief on November 13, 2015. Appellant filed a notice of appeal to this Court on December 4, 2015, and complied with the PCRA court's order to file a Pa.R.A.P 1925(b) concise statement of errors complained of on appeal. Concluding that "the issues raised by [Appellant] have been previously addressed in [its] Order and Opinion dated November 13, 2015," the PCRA court directed the Lebanon County Clerk of Courts to transmit the record to this Court. Order, 12/22/15.
Appellant raises numerous questions for our review, nine challenging trial counsel's representation and one issue concerning the trial court's refusal to appoint conflict counsel:
1. Whether Trial Counsel was ineffective for failing to introduce evidence regarding Appellant's employment so as to rebut the Commonwealth's implications that Appellant was selling drugs?
2. Whether Trial Counsel was ineffective for failing to timely request the video footage of Central Booking so as to
rebut the Commonwealth's witnesses' testimonies regarding the money found in Appellant's possession?
3. Whether Trial Counsel was ineffective for failing to consult with Appellant [about] the video footage of the police car at the time of Appellant's arrest so as to rebut Commonwealth's witnesses' testimonies regarding the money found in Appellant's possession?
4. Whether Trial Counsel was ineffective for failing to obtain and thereby present Appellant's home and job plan to rebut Parole Officer Thomas's and Detective Sergeant Radwanski's testimonies that Appellant resided in a halfway house, and worked a part-time, minimum-waged job?
5. Whether Trial Counsel was ineffective for failing to obtain and thereby present evidence to show that Appellant had not patronized the bar, consumed alcohol, or spoke on a cell phone prior to his being searched, where such evidence should have been used to impeach Parole Officer Thomas's credibility?
6. Whether Trial Counsel was ineffective for failing to argue, on direct appeal, that Appellant's verdict of Possession with Intent to Deliver was against the weight of the evidence presented at Trial, where Commonwealth witnesses gave contradictory testimonies?
7. Whether Trial Counsel was ineffective for failing to introduce evidence that the morphine pills that were allegedly in Appellant's possession at the time in which Appellant was searched was small in quantity, and therefore, could not sufficiently prove Appellant guilty of Possession with Intent to Deliver beyond a reasonable doubt?
8. Whether Trial Counsel was ineffective for failing to object to Parole Officer Thomas's comment that Appellant had a history with the Parole Board, where such comment ultimately prejudiced Appellant?
9. Whether Trial Counsel was ineffective for failing to subpoena and thereby present the parole/probation logs from Parole Officer Thomas, where such evidence should have been used to impeach Parole Officer Thomas's testimony that he had not been at Central Booking?
10. Whether Trial Court erred when it failed to appoint conflict counsel, where the Court was aware that there was a breakdown in communication between Trial Counsel and Appellant?Appellant's Brief at 4-7.
Our standard of review of an order denying PCRA relief is well settled:
Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's decision is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.Commonwealth v. Ruiz , 131 A.3d 54, 57 (Pa. Super. 2015) (quoting Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (internal citations omitted)). Additionally, to establish a claim of counsel's ineffectiveness, a petitioner is required to plead and prove: "(1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. If a petitioner fails to plead or meet any elements of the above-cited test, his claim must fail." Commonwealth v. Ford , 44 A.3d 1190, 1194-1195 (Pa. Super. 2012) (quoting Commonwealth v. Burkett , 5 A.3d 1260, 1271-1272 (Pa. Super. 2010) (internal citations and quotations omitted)).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, we conclude that Appellant's ineffective representation issues merit no relief. As detailed below, the November 13, 2015 PCRA court opinion comprehensively discusses and properly disposes of those questions.
The PCRA court first decided that trial counsel provided effective assistance in regard to counsel's approach to the Commonwealth's evidence of Appellant's employment status. Appellant claimed that he provided trial counsel with a letter indicating that he was a full-time employee in contradiction to Commonwealth testimony that he only worked part-time. The PCRA court concluded that Appellant failed to substantiate the claim that he provided counsel with a letter verifying his full-time employment; instead, it credited trial counsel's testimony at the PCRA hearing that he did not challenge the Commonwealth's testimony concerning Appellant's employment status because that evidence was consistent with what Appellant told counsel and what was presented to the jury. PCRA Court Opinion, 11/13/15, at 6-7.
Second, the PCRA court determined ineffective assistance did not result from trial counsel's efforts in attempting to obtain (from Central Booking) and in obtaining (police vehicle) video footage that Appellant claimed would rebut the Commonwealth's witnesses' testimony regarding money found in Appellant's possession. Appellant avers that the money was taken from him during a search performed by Lebanon City Police Officer Adam Rusz at the arrest scene. However, Appellant contends that Officer Rusz's police report states the money was found at Central Booking while that same officer's inventory report relates that the money was found at the scene. Noting this discrepancy, on January 22, 2013, Appellant requested trial counsel to obtain the video footage from Central Booking for the date of his arrest, April 19, 2012. Trial counsel submitted a request for the footage by email to the Lebanon County District Attorney on February 1, 2013. The District Attorney responded that the Central Booking video footage is retained only for thirty days and that the footage requested no longer existed. Trial counsel was able to obtain the in-car video footage of Appellant in the city police vehicle, but it did not include footage of activity occurring outside of the vehicle. N.T., 6/25/15, at 33-36. Appellant asserts that trial counsel was ineffective by virtue of his failure to timely request the Central Booking video footage and then to utilize it to cast doubt on the credibility of the law enforcement officer's testimony concerning the money confiscated from Appellant.
In addition to finding that trial counsel attempted to comply with Appellant's request for the Central Booking video footage and should not be faulted for its unavailability, the PCRA court also concluded Appellant did not demonstrate any prejudice resulting from trial counsel's actions with regard to the videos. The PCRA court observed:
[Appellant] did not dispute that he was in possession of this money. Even if the footage had shown what [Appellant] claimed, the location where that money was found, and Officer Thomas's presence at Central Booking are inconsequential facts which would have had no bearing on the jury' s verdict. Such facts had no relevance to the elements of [Appellant's] charges
and, even if proven, would not have negated the facts relevant to the Commonwealth's proof of those elements. We believe the jury would have found them to be minor details which would not have had any impact on the credibility attributed to these two witnesses. Trial counsel was able to obtain the police vehicle footage and gave [Appellant] an opportunity to view it. [Appellant] agreed that it showed nothing of the search conducted at the scene at Ninth and Mifflin Streets. He has identified nothing which would have been helpful to his case and trial counsel cannot be faulted for failing to present irrelevant evidence at trial.PCRA Court Opinion, 11/13/15, at 9-10.
Appellant's third issue is that trial counsel was ineffective by failing to consult with Appellant about the video footage from the police car. Appellant does not develop this argument nor could it have merit in that trial counsel did obtain that video footage and showed it to Appellant. N.T., 6/25/15, at 10.
The PCRA court next dismissed Appellant's fourth claim that trial counsel was ineffective for failing to procure and present documents from Appellant's home and job plan that Appellant proposed would shed light on his employment status and his place of residence and contradict testimony presented by the Commonwealth's witnesses. The PCRA court credited trial counsel's explanation that the subject records would not have been helpful to the defense and that counsel "did not want to 'open the door' to [Appellant's] supervision history as he had a number of previous [parole] violations and was behind in the payment of his fines and costs." PCRA Court Opinion, 11/13/15, at 12. Trial counsel also explained that he "feared that [these records] might suggest to the jury that [Appellant] did not have the money for these payments and had been selling drugs because he needed cash." Id. at 13. The PCRA court found "no error of judgment on the part of trial counsel in his attempt to minimize any potential prejudice posed by [Appellant's] supervision history." Id.
Appellant's fifth allegation is that trial counsel was ineffective for failing to obtain and present certain evidence that would rebut the Commonwealth's testimony that Appellant was patronizing a bar, had consumed alcohol, or had spoken on a cell phone prior to his being stopped and searched by Parole Officer Ralph Thomas, where such evidence should have been used to impeach Parole Officer Thomas's credibility. The PCRA court summarized and resolved this issue as follows:
[Appellant] further claims that he was not using a cellphone prior to being approached by Officer Thomas, that he had not been inside the Liberty Bar, and that he had not consumed any alcohol prior to his arrest. He complains that trial counsel failed to conduct an investigation regarding these facts and failed to "ask the right questions" of Officer Thomas and Officer Rusz regarding these matters in order to show their lack of credibility. He asserts that trial counsel should have questioned these witnesses as to why no cellphone was introduced as evidence and why there had been no blood or urine tests to determine whether [Appellant] had consumed alcohol. [Appellant] wanted these subjects brought up during trial so that the jury could "know exactly what happened." (N.T. 6/25/15 at 25) However, he could not recall whether he even requested trial counsel to conduct such an investigation. He also admitted that he knew of no witnesses who could have testified to these facts and had no other evidence to demonstrate that his version of the facts was accurate.
Trial counsel noted that he did refer to the Commonwealth's failure to produce a cellphone during his closing argument. He further explained that he could not follow
up on these matters because [Appellant] could not give him the names of any witnesses. He also did not want to go too much into what was going on at the scene because the police report had indicated that another individual was with [Appellant] when he was first observed by Officer Thomas. As Officer Thomas approached, [Appellant] kicked something that looked like drugs to that individual, and that individual picked up the item and ran into a building. Trial counsel was concerned that if he went into what was going on outside the bar, this would come up and it would suggest to the jury that [Appellant] had been selling drugs. We believe that this was a reasonable basis for trial counsel to avoid bringing up matters from the scene which would not have been helpful to [Appellant] in the long run.PCRA Court Opinion, 11/13/15, at 10-11.
Next, contrary to the argument raised in Appellant's sixth appellate issue, the PCRA court concluded that trial counsel acted reasonably when he did not pursue a weight to the evidence challenge in the post-sentence motion filed on Appellant's behalf. The PCRA court reviewed trial counsel's testimony at the PCRA hearing describing counsel's evaluation of a possible weight of the evidence issue and agreed that such an argument would be unavailing. The PCRA court noted:
Trial counsel explained that he saw no merit in including a challenge to the weight of the evidence because the determination of what credibility to give to the testimony of these two witnesses was for the jury and he saw no chance that such an argument would be successful. After reviewing the transcript of the jury trial, we agree with trial counsel that this argument would have been unsuccessful and that he was not required to pursue a meritless avenue at the post-sentence stage of these proceedings. The claimed inconsistencies were of insignificant matters and were irrelevant to the elements of the offenses with which [Appellant] was charged. We find nothing that would indicate lack of credibility on any of the Commonwealth witnesses to such a degree that their testimony
should not have been given the credibility attributed to it by the jury.PCRA Court Opinion, 11/13/15, at 17-18.
Appellant's seventh assertion of ineffective representation concerns trial counsel's failure to introduce evidence that the small amount of morphine pills (thirty-six pills) found in his possession was not consistent with a possession with intent to deliver offense. The PCRA court rejected this allegation of ineffectiveness, reasoning:
At the PCRA hearing, [Appellant] gave confusing testimony in this regard. [Appellant] acknowledged that he did not request trial counsel to present any evidence that the pills were for personal use. [Appellant] insisted that he had a prescription, but claimed that he did not tell trial counsel why he had the pills in his possession because he had already told prison officials that he was not using any drugs in his intake form. In the next breath, however, he testified that he told trial counsel that he was taking the pills for leg pain and was not selling them.
[Appellant] admitted that the only evidence which could have been presented on this issue was his own testimony. However, on the morning of trial, [Appellant] told both trial counsel and the Trial Judge that he would not testify[.]
* * *
Trial counsel testified [Appellant] had acknowledged to him that he was using the morphine pills, and had told him they were in his possession for his personal use. However, [Appellant] did not tell trial counsel that he was using the pills for pain. If [Appellant] had told him that he was using them for pain, trial counsel would have followed up to obtain evidence of his medical condition and the details of his treatment.
Trial counsel also explained that he had defended felony drug cases in the past and was familiar with presenting defenses in such cases. He was familiar with Sergeant Radwanski, the Commonwealth's expert on possession with intent to deliver, and had dealt with him in his past cases. Trial counsel conducted
extensive questioning of Sergeant Radwanski regarding the factors relevant to a possession with intent to deliver case and felt that he asked all questions pertinent to the defense of this charge.PCRA Court Opinion, 11/13/15, at 13-16 (record references omitted).
We agree with the Commonwealth that [Appellant] cannot now complain that no evidence was presented to support his position that he was in possession of the morphine pills for personal use due to pain when he provided trial counsel with no information regarding this issue prior to trial. Moreover, although [Appellant] had the absolute right to decline the opportunity to testify on his own behalf at trial, he admitted that this was the only evidence available on this point.
The PCRA court additionally observed that its review of the trial transcript revealed that:
trial counsel conducted a rigorous cross-examination of Sergeant Radwinski regarding his opinion. Trial counsel asked numerous questions regarding the money in [Appellant's] possession, the prison intake form, the way in which the pills were packaged, the lack of necessity of paraphernalia for ingesting such pills, and other issues which would have been relevant to the issue of an intent to distribute. We find nothing more that he could have done under the circumstances.PCRA Court Opinion, 11/13/15, at 17.
Appellant's eighth argument is that trial counsel was ineffective for failing to object to Parole Officer Thomas's comment at trial that Appellant had a history with the Parole Board because such comment unduly prejudiced Appellant in the eyes of the jury. The PCRA court did not find this allegation of ineffectiveness to be meritorious:
At the jury trial, Officer Thomas had noted that [Appellant] was on state parole at the time and was not permitted to be in an establishment that sells alcohol. In addition, Officer Thomas also
indicated that he would be familiar with the home address of a supervisee. [Appellant] claims that this testimony implied that Officer Thomas was familiar with [Appellant] because he was on supervision, thereby causing prejudice in the eyes of the jury.PCRA Court Opinion, 11/13/15, at 11-12 (record reference omitted).
Trial counsel explained that this testimony was offered by the Commonwealth as an explanation for why Officer Thomas was making contact with [Appellant]. Trial counsel knew that under the circumstances of the case, there would be no way to avoid the subject of [Appellant's] supervision. He believed that the jury was well aware that [Appellant] was on state parole at the time because he was detained by a state parole officer. Since there was no way to avoid this subject, he did not object. We find it highly doubtful that the jury would have reached a different verdict had it not known this information.
Appellant's last complaint concerning trial counsel's representation is that counsel was ineffective for failing to subpoena Parole Officer Thomas's parole logs to impeach the officer's testimony that he was present when Appellant was brought to Central Booking. While the PCRA court did not specifically address whether trial counsel should have subpoenaed these documents, it did determine that:
Officer Thomas's presence at Central Booking [is an] inconsequential fact[] which would have had no bearing on the jury's verdict. Such fact[] ha[s] no relevance to the elements of [Appellant's] charges and, even if proven, would not have negated the facts relevant to the Commonwealth's proof of those elements. We believe the jury would have found [it] to be [a] minor detail[] which would not have had any impact on the credibility attributed to [Officer Thomas].PCRA Court Opinion, 11/13/15, at 9. The PCRA court thus concluded that Appellant did not suffer any prejudice by trial counsel's failure to contest the fact of Officer Thomas's presence at Central Booking. Id.
Appellant's final issue is that the trial court erred when it failed to appoint conflict counsel when the court became aware that there was a breakdown in communication between Appellant and trial counsel. This assertion of error is not cognizable in this proceeding. To be eligible for PCRA relief, a petitioner must demonstrate that "the allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). Under 42 Pa.C.S. § 9544(b), "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." The PCRA court found that Appellant "made no mention of any complaint regarding trial counsel throughout the pretrial period, at the time of the jury trial, or in post-sentence proceedings." PCRA Court Opinion, 11/13/15, at 20. Nor did Appellant raise the conflict counsel issue in his direct appeal. See Appellant's Pa.R.A.P. 1925(b) statement, 12/11/13, at 1 (claiming error in the trial court's denial of his pretrial motion to suppress and challenging the sufficiency of the evidence to support his conviction for possession with intent to distribute). Thus, this claim is waived for appellate review. Commonwealth v. Bond , 819 A.2d 33, 39 (Pa. 2002) ("[C]laims that could have been raised on direct appeal but were not are waived under the PCRA.").
To summarize, the PCRA court's opinion thoroughly and cogently addressed each allegation of ineffectiveness. The record supports the PCRA court's determinations, and the PCRA court's decision is free of legal error. Additionally and remarkably, Appellant does not challenge any of the PCRA court's factual findings or claim that the PCRA court's legal conclusion are erroneous. For these reasons, as to the nine claims of ineffective assistance of counsel, we affirm on the basis of the PCRA court's November 13, 2015 opinion and adopt it as our own. Accordingly, we direct the parties to include the PCRA court's opinion in all future filings relating to our examination of the merits of this appeal. Furthermore, Appellant's claim that the trial court erred when it denied his request to appoint conflict counsel is waived. See 42 Pa.C.S. § 9544(b) (for purposes of collateral relief, issue is waived if the petitioner could have previously raised the issue but failed to do so).
These conclusions, however, do not discharge our appellate obligation in this matter. In his appellate brief, albeit in a footnote, Appellant, for the first time, challenges the legality of his sentence under Alleyne v. United States , 133 S.Ct. 2151 (2013). While ordinarily Appellant's effort to raise an issue for review that was not included in his Pa.R.A.P. 1925(b) statements, either in his direct appeal or his present appeal from denial of PCRA relief, would be unsuccessful and subject to waiver, an Alleyne claim is a non-waivable challenge to the legality of sentence, which is cognizable under the PCRA. See Commonwealth v. Newman , 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (an Alleyne challenge to a sentence implicates the legality of the sentence and such a challenge cannot be waived). But see Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014) ( Alleyne does not invalidate a mandatory minimum sentence when presented in an untimely PCRA petition). We will, therefore, address whether Appellant's legality of sentence challenge is cognizable in light of the procedural posture in which the claim was raised.
On September 18, 2015, the Pennsylvania Supreme Court granted the petition for allowance of appeal in Commonwealth v. Barnes , 350 EAL 2014, 122 A.3d 1034 (2015) (per curiam), to address the question of whether an Alleyne violation implicates the legality of a sentence and thus renders a challenge non-waivable.
At the time Appellant was sentenced, 18 Pa.C.S. § 6317(a) imposed a mandatory minimum sentence of two years of confinement upon a defendant for, inter alia, a conviction of possession with intent to deliver, 35 P.S. § 780-113(a)(30), if the possession with intent to deliver a controlled substance occurred within 1,000 feet of a school. Additionally, section 6317(b) instructed that "the provisions of this section shall not be an element of the crime" and the applicability of the statute shall be determined at sentencing by a "preponderance of the evidence." 18 Pa.C.S. § 6317(b).
In Alleyne , the United States Supreme Court held that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne , 133 S.Ct. at 2155 (citation omitted). Three years later, in Commonwealth v. Hopkins , 117 A.3d 247 (Pa. 2015), the Pennsylvania Supreme Court applied the Alleyne mandate and held that the mandatory minimum sentencing scheme set forth in 18 Pa.C.S. § 6317 was unconstitutional in its entirety. Hopkins , 117 A.3d at 262.
In Commonwealth v. Ruiz , 131 A.3d 54, 57 (Pa. Super. 2015), this Court reiterated its prior declarations in Newman that: (1) an Alleyne claim is a non-waivable challenge to the legality of sentence; and (2) Alleyne announced a new constitutional rule that applied to all cases pending on direct review when Alleyne was decided. Ruiz , 131 A.3d at 59-60 (citing Newman , 99 A.3d at 90). Based on those premises, Ruiz held that a defendant could raise an Alleyne challenge in a timely PCRA petition so long as his direct appeal from the judgment of sentence was still pending when Alleyne was decided. Ruiz , 131 A.3d at 60.
Recently, in Commonwealth v. Washington , ___ A.3d ___, 2016 WL 3909088 (Pa. filed July 19, 2016), the Pennsylvania Supreme Court addressed an Alleyne claim raised in a timely PCRA petition where the judgment of sentence had become final prior to the Alleyne decision. In doing so, the Court stated:
[A] new rule of law does not automatically render final, pre-existing sentences illegal. A finding of illegality concerning such sentences may be premised on such a rule only to the degree that the new rule applies retrospectively. In other words, if the rule simply does not pertain to a particular conviction or sentence, it cannot operate to render that conviction or sentence illegal. . . .
Id. at *3-4 (emphasis added). See also id. at *4 (stating: "[I]f a new constitutional rule does not apply, it cannot render an otherwise final sentence illegal"). The Washington Court applied the retroactivity analysis delineated in Teague v. Lane , 489 U.S. 288 (1989), and determined the new constitutional rule announced in Alleyne is not a substantive or watershed procedural rule that would warrant retroactive application. Washington , id. at *7. The Court held the defendant was not entitled to retroactive application of Alleyne because his judgment of sentence became final before Alleyne was decided. Id.
* * *
[N]ew constitutional procedural rules generally pertain to future cases and matters that are pending on direct review at the time of the rule's announcement.
Here, Appellant's judgment of sentence had not become final prior to the Alleyne decision, thus Washington is distinguishable. Appellant's sentencing proceeding was held on June 12, 2013. At the hearing, the sentencing court determined that the school zone sentencing enhancement then codified at 18 Pa.C.S. § 6317 applied. N.T. (Sentencing), 6/12/13, at 19. Appellant was then sentenced to an aggregate term of thirty-nine to seventy-eight months of incarceration.
On June 17, 2013, three days after Appellant's sentence was imposed, the United States Supreme Court issued its decision in Alleyne. Appellant timely filed a post-sentence motion which the trial court denied on October 22, 2013. Appellant filed a timely direct appeal on November 23, 2013. Appellant, however, did not present an Alleyne challenge in these pleadings; nor did the panel of this Court raise it sua sponte in its decision affirming Appellant's judgment of sentence. See Commonwealth v. Diaz-Perdomo , 106 A.3d 162, No. 2108 MDA 2013 (Pa. Super. filed August 15, 2014) (unpublished memorandum). Appellant did not petition the Pennsylvania Supreme Court for review; accordingly, his judgment of sentence became final on September 15, 2014. See 42 Pa.C.S. § 9545(b)(3) (providing "a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review."). Accordingly, because Appellant's judgment of sentence was pending when Alleyne was decided, under Ruiz , Alleyne applies and Appellant is entitled to review and relief. See also Hopkins , 117 A.3d at 262.
The thirtieth day, September 14, 2014, fell on a Sunday. Therefore, Appellant's judgment of sentence became final on Monday, September 15, 2014. See 1 Pa.C.S. § 1908.
Based on the foregoing, we conclude Appellant is entitled to a remand for resentencing without application of any unlawful mandatory minimum statute. Accordingly, we reverse the order denying PCRA relief, vacate the judgment of sentence, and remand for resentencing without imposition of the mandatory minimum term. See Commonwealth v. Bartrug , 732 A.2d 1287 (Pa. Super. 1999) (holding sentencing error in multi-count case normally requires appellate court to vacate entire judgment of sentence so trial court can restructure its sentencing scheme on remand).
Order reversed; judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/15/2016
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