J-S30029-25
2025 PA Super 241
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES SHIELDS :
:
Appellant : No. 2090 EDA 2024
Appeal from the PCRA Order Entered July 10, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001484-2013
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *
OPINION BY MURRAY, J.: FILED OCTOBER 24, 2025
Charles Shields (Appellant) appeals from the order dismissing his timely
first petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 This
case returns to us following our remand to the PCRA court for the filing of a
supplemental opinion. Commonwealth v. Shields, 323 A.3d 181, 543 EDA
2023 (Pa. Super. 2024) (unpublished memorandum) (“Shields III”). For the
first time in this appeal, Appellant, through new PCRA counsel, raises claims
of his prior PCRA counsel’s ineffectiveness, pursuant to Commonwealth v.
Bradley,
261 A.3d 381 (Pa. 2021).2 After careful review, we vacate the order
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* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
2 Bradley held that “a PCRA petitioner may, after a PCRA court denies relief,
and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
Bradley, 261 A.3d at 401.
(Footnote Continued Next Page)
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dismissing the PCRA petition and remand for consideration of one of
Appellant’s newly-raised claims of prior PCRA counsel’s ineffectiveness.
The Shields III Court summarized the facts underlying Appellant’s
convictions:
When Dwayne Walters [(“Mr. Walters” or “the victim”)] awoke in
the early afternoon hours of November 17, 2012, his cell phone
displayed numerous missed calls from [Appellant]. Around 1:30
p.m., Mr. Walters left his apartment to get a haircut. He walked
through the parking lot of his apartment complex towards his
rental car, a white Dodge. As he unlocked the car door, Lamar
Roane [(Roane)], whom Mr. Walters did not know, approached
Mr. Walters and asked him for a light. When Mr. Walters said he
did not smoke, Roane grabbed his arm tightly. [Appellant] and
his brother, Thomas Shields [(Thomas)], 3 appeared from their
concealed locations and approached Mr. Walters and Roane.
Thomas [] displayed a long chrome-colored handgun and shoved
the barrel into Mr. Walters’s stomach. Thomas [] asked Mr.
Walters about the money, a reference to $700 he believed Mr.
Walters owed him from a drug transaction. Surrounded, and
desperate to defend himself, Mr. Walters grabbed the gun. A brief
struggle ensued between Mr. Walters and Thomas []. [Appellant]
pulled out a black handgun and Thomas told [Appellant] to shoot
Mr. Walters. Mr. Walters released his hold on the gun and stopped
struggling. [Appellant] took Mr. Walters’ car keys, phone, watch
____________________________________________
In Bradley, our Supreme Court addressed the dilemma of when a
defendant may raise claims of ineffective assistance of PCRA
counsel[,] and held that such claims may be raised for the first
time during an appeal from the denial of a timely filed first PCRA
petition where the PCRA counsel in question represented the
defendant until the appeal.
Commonwealth v. Stahl, 292 A.3d 1130, 1135 (Pa. Super. 2023) (citing
Bradley, 261 A.3d at 401-05).
3 The Commonwealth jointly tried Thomas and Appellant as co-defendants at
their jury trial in May 2014. As we discuss infra, Thomas’s appeal (2072 EDA
2024) is also before this panel.
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and wallet[,] and then forced him into the driver’s door of his white
Dodge. [Appellant] shoved Mr. Walters over the center console
into the passenger seat, while Roane and Thomas [] went around
the car and entered the rear seats of the vehicle.
Mr. Walters pushed open the passenger door, and as he
started to escape, Roane grabbed his jacket. Mr. Walters wiggled
out of his grasp and ran[,] while Roane pursued him. When Mr.
Walters glanced back to see if anyone was chasing him, he saw
[Appellant] and Thomas [] aiming guns at him. He heard two
gunshots[,] and a single bullet struck him in the back and exited
his chest.
Jennifer Boyle [(Ms. Boyle)], a resident of the [victim’s]
apartment complex, heard men arguing outside. When she went
to the window of her apartment [to investigate], she saw two men
fire their guns.4 ….
Mr. Walters, bleeding profusely from his gunshot wound,
entered the back seat of a stopped vehicle occupied by two women
and a young boy. He pressed his back against the seat of the
vehicle in an attempt to stop the bleeding. The woman in the
passenger seat panicked and asked Mr. Walters to exit her car,
and he stumbled out and collapsed onto the sidewalk. As he lay
there, he saw his assailants exiting the parking lot in his white
Dodge rental car.
At approximately 1:39 p.m., Philadelphia Police Officer
Brandon Badey received a priority radio call reporting a shooting
near 2607 Welsh Road, Philadelphia, Pennsylvania. Upon arriving
at the scene, Officer Badey saw Mr. Walters on the ground, holding
a blood-soaked towel to his chest. Mr. Walters, who was slipping
in and out of consciousness, was unable to communicate to Officer
Badey who shot him. Realizing that Mr. Walters’ condition was
critical, Officer Badey and the second officer on[-]scene placed Mr.
Walters in the back of Officer Badey’s patrol car and rushed him
to the hospital. Mr. Walters was immediately taken to the
operating room and, after surgery, he was transferred to the
Intensive Care Unit. He remained hospitalized for six weeks.
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4 At trial, Ms. Boyle testified that she “didn’t get a good look at the guys that
had th[e] guns” and fired at Mr. Walters. N.T., 5/8/14, at 20.
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During the investigation of the crime scene, police located
two .45 caliber casings, which[,] the Commonwealth’s ballistician
testified[,] were fired from the same gun. Underneath a nearby
car that had a bullet hole in its windshield, investigators found a
cell phone that contained several videos and photos that
Thomas [] had taken of himself. [Police] obtained search
warrants for that cell phone data, including call logs and text
messages. [Police] also obtained warrants for the data from Mr.
Walters’ cell phone and information associated with the telephone
numbers of [Appellant], Thomas [], and [] Roane. The search
revealed that multiple telephone calls were made to and from
Thomas [] and [Appellant], and from Thomas [] to [] Roane, on
the day in question. At least four telephone calls and several text
messages were sent from Thomas[’s] … phone to the victim on
the morning of the shooting.
On November 20, 2012, Mr. Walters identified both
[Appellant] and Thomas [] from a photographic array. Several
days later, [police o]fficers arrested Thomas [] at 1758 East
Washington Lane, Philadelphia, Pennsylvania. A search of the
residence yielded one silver .45 caliber hollow point bullet. …. On
November 29, 2012, [Appellant] surrendered at the U.S.
Marshall’s office.
Shields III, 323 A.3d 181 (unpublished memorandum at 1-5) (citation and
original footnote omitted; footnotes added).
On January 11, 2013, a grand jury indicted Appellant on one count each
of attempted murder, aggravated assault – serious bodily injury, possessing
instruments of crime, attempted kidnapping, persons not to possess firearms,
firearms not to be carried without a license, and criminal conspiracy. 5, 6 The
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5 18 Pa.C.S.A. §§ 901(a) & 2502, 2702(a)(1), 907(a), 901(a) & 2901(a),
6105(a), 6106, 903(a).
6 The conspiracy charge is pertinent to the instant appeal. Regarding this
charge, the indictment stated, in relevant part, as follows:
(Footnote Continued Next Page)
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matter proceeded to a jury trial in May 2014, 7 wherein Appellant and Thomas
were jointly tried.8 Appellant was represented by Gary Server, Esquire (trial
counsel).
Following the close of evidence at trial, the trial court instructed the jury
on the law. The court instructed, inter alia, as follows regarding the conspiracy
charge:
The accused in this case are being charged with Conspiracy. The
Commonwealth is alleging that each defendant conspired with the
other and with [] Roane. The Commonwealth is alleging that the
crime of attempted murder, aggravated assault, and/or
attempted kidnap were the objects of the conspiracy.
N.T., 5/15/14, at 43 (emphasis added); see also id. at 42-44 (trial court’s
remaining instructions on conspiracy). During the charging conference held
on the prior day of trial, trial counsel argued that it would be inappropriate to
instruct on conspiracy to commit kidnapping; the trial court disagreed.
____________________________________________
[Appellant], on or about November 17, 2012, with the intent of
promoting or facilitating the commission of a crime, in this
case, the Attempted Murder and/or Aggravated Assault of
[Mr.] Walters, agreed with others that they would engage in conduct
that would constitute such a crime, and [Appellant] or another coconspirator acted in furtherance of that conspiracy.
Indictment, 1/11/13, at 2-3 (unpaginated) (emphasis added).
7 The PCRA court judge throughout the protracted proceedings, the Honorable
Edward Wright, also presided at Appellant’s trial.
8 Prior to trial, Roane pled guilty to certain crimes in connection with the
incident. Roane did not testify at trial.
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N.T., 5/14/14, at 3-4.9 Otherwise, trial counsel did not object to the trial
court’s instructions on conspiracy.
____________________________________________
9 During the charging conference, the following discussion occurred concerning
the conspiracy charge:
THE COURT: …. With respect to the issue of the conspiracy
charge. During our charging conference, it came to the [c]ourt’s
attention that the grand jury indictment [listed] conspiracy to
commit attempted murder, as well as conspiracy to commit
aggravated assault[;] it did not mention conspiracy to commit
kidnapping because [the] information didn’t mention conspiracy
to commit kidnapping. For the record, [Commonwealth,] your
argument is the Court should charge conspiracy related to
kidnapping?
[The prosecutor]: …. [T]he bills of information are the official
charging document and they do list, in fact, kidnapping as one of
the crimes for which the defendants are accused of conspiring to
commit. At this stage, there’s no reason not to charge that based
upon the evidence presented in the case and based on the bills of
information[.]
N.T., 5/14/14, at 2-3. Trial counsel countered it would be inappropriate to
charge the jury on conspiracy to commit kidnapping, where the indictment,
i.e., “the actual charging instrument,” made no mention of conspiracy to
commit kidnapping. Id. at 3. The trial court ruled that
the [c]ourt is finding that the indictment comes first. The bills of
information are generated from that, but the defense was on
notice and there was documentation from the Commonwealth
indicating there was a conspiracy to commit kidnapping. There
was no motion to quash and there was testimony on the record
and reasonable inferences in the testimony to support an
attempted kidnapping whereby the [c]ourt will charge the jury
with respect to the conspiracy as related to kidnapping.
Id. at 4.
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On May 16, 2014, the jury found Appellant guilty of aggravated assault
– serious bodily injury, attempted kidnapping, and “Conspiracy”; it acquitted
Appellant of the remaining charges, including attempted murder. Verdict
Sheet, 5/16/14. Significantly, the verdict sheet provided the jury no
interrogatory to render a finding regarding the underlying object of
the conspiracy.10 Id. Moreover, when the jury delivered its guilty verdict,
in open court, on the conspiracy count, no object of the conspiracy was
specified. N.T., 5/16/14, at 4. Notwithstanding the jury’s general verdict on
the conspiracy charge, the trial court, immediately following the jury’s verdict,
completed a “Trial Disposition Form” indicating that the jury found Appellant
guilty of “Conspiracy – Aggravated Assault[.]” Trial Disposition Form,
5/16/14, at 2 (emphasis added).
On July 25, 2014, the trial court sentenced Appellant to an aggregate
term of 21 to 42 years of imprisonment. The trial court structured its sentence
as follows, and ordered each sentence to run consecutively:
Aggravated assault: 10 – 20 years in prison;
Attempted kidnapping: 5 – 10 years in prison;
“Conspiracy”: 6 – 12 years in prison.
____________________________________________
10 However, regarding the aggravated assault charge, the verdict sheet posed
an interrogatory asking the jury to make a finding as to whether the evidence
established that Appellant caused the victim serious bodily injury. Verdict
Sheet, 5/16/14.
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Sentencing Order, 7/25/14, at 1 (unpaginated). Regarding conspiracy, the
sentencing order characterized Appellant’s conviction as follows: “18 § 903 §§
C - Conspiracy - Aggravated Assault (F1)[.]” Id. (emphasis added); see
also N.T., 7/25/14, at 53 (trial court imposing sentence in open court for
“conspiracy/aggravated assault”).
Appellant timely filed a post-sentence motion, which the trial court
denied.11 Thereafter, Appellant timely filed a direct appeal through trial
counsel. Appellant challenged, inter alia, the sufficiency and weight of the
evidence supporting his convictions. This Court affirmed Appellant’s judgment
of sentence. Commonwealth v. Shields, 154 A.3d 865, 3376 EDA 2014
(Pa. Super. 2016) (unpublished memorandum). 12 Our Supreme Court
subsequently denied allowance of appeal. Commonwealth v. Shields,
166
A.3d 1228 (Pa. 2016).
Prior PCRA History
____________________________________________
11 In his post-sentence motion, Appellant did not challenge the legality of his
sentence; rather, he asserted that his sentence was manifestly excessive.
Post-Sentence Motion, 7/31/14, ¶ 2.
12 On direct appeal, this Court stated, “Appellant was not convicted of
conspiracy to commit kidnapping, but of conspiracy to commit aggravated
assault.” Shields, 154 A.3d 865 (unpublished memorandum at 15) (citing
the sentencing order and notes of testimony from the sentencing hearing);
see also
id. (acknowledging that the trial court “charged the jury that the
crimes of attempted murder, aggravated assault, and/or kidnapping were the
objects of the criminal conspiracy.”).
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The PCRA procedural history that ensued is tortured, spanning multiple
years. Appellant timely filed a pro se PCRA petition on November 6, 2017, his
first. The PCRA court appointed Appellant counsel, Valarie Palazzo, Esquire
(first PCRA counsel), who filed an amended PCRA petition on May 1, 2018.
The amended petition asserted multiple claims of trial counsel’s
ineffectiveness,13 alleging, inter alia, that counsel “fail[ed] to object [to] …
numerous improper and highly prejudicial statements made by [the
prosecutor] in her closing argument.” Amended PCRA Petition, 5/1/18, ¶
5(a); see also id. ¶ 5(b). The Commonwealth filed a motion to dismiss the
PCRA petition on November 6, 2018.
First PCRA counsel filed a supplemental amended PCRA petition on July
18, 2019. The supplemental petition asserted, inter alia, “[trial] counsel was
ineffective at trial because counsel did not object to a misleading, vague and
____________________________________________
13 At the outset, we recognize the well-settled law regarding claims of
ineffective assistance of counsel (IAC):
To be entitled to relief on an [IAC] claim, a PCRA petitioner must
establish: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure to act; and
(3) he suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
the result of the proceeding would have been different.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote
omitted; citations omitted). “The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.” Commonwealth v. Lawrence,
309 A.3d 152, 155 (Pa. Super. 2024) (citation omitted).
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confusing charge by the [trial c]ourt to the jury on the offense of conspiracy.”
Supplemental Amended PCRA Petition, 7/18/19, ¶ 5(c).14
On September 19, 2019, the PCRA court entered an order summarily
granting Appellant’s PCRA petition, and awarding Appellant a new trial. 15 The
Commonwealth timely appealed.
This Court reversed the PCRA court on December 24, 2020. See
generally Commonwealth v. Shields, 323 A.3d 181, 2991 EDA 2019 (Pa.
Super. 2019) (unpublished memorandum) (“Shields I”). The Shields I Court
concluded that the PCRA court erred, where it
did not indicate in its September 19, 2019 order the basis on which
it granted [Appellant’s] petition for PCRA relief. Nor did the PCRA
court provide in its Pa.R.A.P. 1925(a) opinion the reasons for the
rulings and errors complained of by the Commonwealth in its
[Pa.R.A.P. 1925(b)] concise statement. Thus, our appellate review
of the issues raised by the Commonwealth is hampered by our
inability to determine which of [Appellant’s] ineffectiveness claims
the PCRA court found to be meritorious.
Id. (unpublished memorandum at 5-6). We thus remanded the matter to the
PCRA court, and retained jurisdiction, ordering the court to issue a revised
Rule 1925(a) opinion addressing the Commonwealth’s claims of error.
Id.
(unpublished memorandum at 6).
____________________________________________
14 The supplemental amended PCRA petition did not elaborate further.
15 The PCRA court neither conducted an evidentiary hearing prior to granting
relief nor specified which of Appellant’s multiple IAC claims merited relief.
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The PCRA court complied with the Shields I Court’s remand directive
and issued a revised opinion on April 7, 2021, and accompanying order, again
recommending that this Court affirm the grant of PCRA relief. 16 See
generally PCRA Court Opinion, 4/7/21.
This Court subsequently vacated the grant of PCRA relief and remanded
the matter for an evidentiary hearing on Appellant’s ineffectiveness claims
stating, in pertinent part, the following:
[B]ecause the PCRA court did not conduct an evidentiary hearing
to permit trial counsel … to explain the bases for [counsel’s] legal
strategies, we cannot determine whether trial counsel had a
reasonable basis for not objecting to comments made by the
prosecutor during closing argument or to the trial court’s jury
instructions ….
…
Accordingly, we remand for the PCRA court to conduct an
evidentiary hearing to permit the introduction of evidence and
testimony relevant to the claims raised by [Appellant] in his PCRA
petition.
Commonwealth v. Shields, 260 A.3d 153, 2991 EDA 2019 (Pa. Super.
2021) (unpublished judgment order at 3) (“Shields II”).
In compliance with Shields II, the PCRA court conducted an evidentiary
hearing on September 15, 2022, and considered testimony from, inter alia,
trial counsel in relation to Appellant’s IAC claims. By an order (and
____________________________________________
16 The PCRA court did not conduct an evidentiary hearing on Appellant’s
claims.
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accompanying opinion) entered January 31, 2023, the PCRA court again
granted Appellant’s PCRA petition and awarded him a new trial.
This Court previously summarized the pertinent contents of the PCRA
court’s January 31, 2023, opinion:
The PCRA court … explained that the grant of [Appellant’s PCRA]
petition and award of a new trial was on the ground that trial
counsel was ineffective for not objecting to “claims” made in the
prosecutor’s summation. PCRA Court Opinion, [1/31/23, at] 7.
Specifically, the PCRA court ruled that there was arguable merit
[to Appellant’s claim] that trial counsel should have objected to
claims “such as” (1) trial counsel “was ‘purposefully trying to
mislead you [the jury]’” [;] or (2) “it’s about people like you… [the
jury], [w]ho live in apartment complexes like the people at the
Joshua Street Houses.” Id. at 7-8[] (brackets in PCRA court
opinion). See N.T.[,] 5/15/14, [at] 13, 24.
Shields III, 323 A.3d 181 (unpublished memorandum at 13-14). 17
____________________________________________
17The Shields III Court summarized the full context of the prosecutor’s
challenged comments as follows:
Now, the shooting happens right before 1:38[ ]p[.]m. Now,
how do we know that? Because there’s a 911 call, the 911
print out, that [the parties] all agreed to or stipulated to.
Showing the first 911 call at 1:37:52[ ]p[.]m. So the
shooting happened, what, a minute[] or two before. I don’t
know why [trial counsel] -- I don’t know why he’s
purposefully trying to mislead you.
[Trial Counsel]: Objection.
[Prosecutor]: I would hope not, but the defendants, the
evidence, that they agreed to put the shooting at before
1:38, and 2 to 3 minutes after that shooting, [Appellant],
and at least [] Roane because we have his phone and are
driving [sic] away.
(Footnote Continued Next Page)
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The Commonwealth again appealed the PCRA court’s grant of relief.
“Notably, the PCRA court neither ordered a Rule 1925(b) Statement, nor filed
a revised opinion.” Id. at 15.
In Shields III, this Court initially addressed Appellant’s IAC claim
concerning the prosecutor’s remarks in her summation, and the PCRA court’s
grant of a new trial on this issue. See id. at 16-27. We reversed the PCRA
court’s grant of relief based on our conclusion that Appellant had failed to
establish the “prejudice prong” of the IAC test. See id. at 23-27; see also
Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (“To demonstrate
prejudice, the petitioner must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” (citation and internal quotation marks omitted)).
We went on to observe that (1) “the written order of the PCRA court
grants [Appellant’s PCRA] petition (and all subsequent amendments) in total,
rather than in part”; and (2) “[Appellant] litigated fully before the PCRA court
a claim that trial counsel [was] ineffective for not objecting to the court’s
instructions on criminal attempt and criminal conspiracy in that [counsel] did
not clearly distinguish a substantial step from an overt act.” Id. at 27. We
emphasized that
____________________________________________
N.T.[,] 5/15/14, [at] 13.
Shields III, 323 A.3d 181 (unpublished memorandum at 18) (emphasis and
some brackets added).
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[t]he PCRA court did not enter a specific ruling on this claim, either
granting it or denying it. We also recognize that whether a
reasonable basis or actual prejudice was proven at the [PCRA
evidentiary] hearing may play out differently with a jury
instruction claim. Out of fairness to all of the parties, we therefore
remand the matter for the PCRA court to write a supplemental
opinion stating clearly its ruling on this claim, and its reasons
therefor, including a determination of whether the [jury]
instructions were confusing, whether [trial] counsel had a
reasonable basis to not object, and whether, in light of the strong
evidence supporting the verdict, there was actual prejudice from
[trial] counsel’s alleged failure. We will relinquish jurisdiction so
that the parties can, within 30 days of the entry of the
supplemental opinion and order, appeal the ruling if they so
choose.
Id. at 27-28 (internal citations to record and footnote omitted).
The Instant Appeal
On July 10, 2024, the PCRA court issued the dismissal order underlying
the instant appeal, which was accompanied by a supplemental opinion
(Supplemental Opinion).18 In the order, the PCRA court (1) initially
summarized the Shields III Court’s remand instructions in connection with
Appellant’s remaining IAC claim; and (2) “decreed that [Appellant’s] PCRA
claim that trial counsel was ineffective for not objecting to the trial court’s
instructions on criminal attempt and criminal conspiracy is dismissed.” Order,
7/10/24 (emphasis omitted; some capitalization modified).
____________________________________________
18 The PCRA court held no evidentiary hearing prior to dismissing Appellant’s
PCRA petition.
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We need not discuss the Supplemental Opinion in detail, as its analysis
is not pertinent to the claims of error Appellant raises on appeal, 19 addressed
infra. In short, the PCRA court concluded that Appellant had failed to meet
his burden of proving any of the three prongs of the IAC test in connection
with his remaining IAC claim. See Supplemental Opinion, 7/10/24, at 2-6.20
Appellant timely filed a notice of appeal, through first PCRA counsel,
within 30 days of the Supplemental Opinion and order.21 On August 15, 2024,
new PCRA counsel for Appellant, Michael Wiseman, Esquire (current PCRA
____________________________________________
19 Appellant concedes in his appellate brief that the “claim for relief presented
by [first] PCRA counsel,” i.e., trial counsel’s ineffectiveness for failing to object
to the jury instructions, which “was addressed in the PCRA court’s
Supplemental Opinion and [] is the ostensible subject of this appeal, does not
have arguable merit. Accordingly, it will not be briefed [].” Appellant’s Brief
at 8 (italics omitted; emphasis added).
20 The PCRA court opined, “trial counsel cannot be deemed ineffective for not
objecting to the jury instruction on conspiracy since the instruction was correct
and trial counsel would have had no reasonable basis to object.”
Supplemental Opinion, 7/10/24, at 2 (bold omitted; some capitalization
modified). The PCRA court further determined that “there was no actual
prejudice [to Appellant,] considering the strong evidence in support of the
verdict[.]” Id. at 5 (bold omitted; some capitalization modified).
21 The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, nor did Appellant file one.
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counsel), entered his appearance in the PCRA court. 22 Current PCRA counsel
thereafter filed, in this Court, Appellant’s principal brief and reply brief. 23
On appeal, Appellant presents two issues for our review:
1. Did the Commonwealth violate due process of law when it failed
to provide trial [] counsel with discovery showing that an
eyewitness[] to the incident failed to select [Appellant] from a
pre-trial photo array? Was [first] PCRA counsel ineffective for
failing to discover this fact through a review of the prosecutor’s
file, and litigate this due process violation?
2. Did Appellant’s consecutive terms of imprisonment for two
inchoate offenses violate 18 Pa.C.S. § 906, thus requiring
resentencing? Were all prior counsel, including [first] PCRA
counsel, ineffective for failing to raise this claim and correct
Appellant’s illegal sentence?
Appellant’s Brief at 2 (issues reordered for ease of disposition).
We are mindful of our standard of review: “When reviewing the
[dismissal] of a PCRA petition, an appellate court must determine whether the
PCRA court’s order is supported by the record and free of legal error.”
Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (citation,
footnote, and quotation marks omitted). “The scope of review is limited to
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22 Aside from his entry of appearance, current PCRA counsel did not submit
any filings in the PCRA court.
23 Current PCRA counsel also represents Thomas in connection with Thomas’s
appeal from a materially-identical July 10, 2024, Supplemental Opinion and
order that the PCRA court issued in Thomas’s case. Thomas’s appeal from
that order is also listed before this panel, docketed at 2072 EDA 2024. As
current PCRA counsel explains, the respective appellate briefs in Appellant’s
and Thomas’s cases are “materially identical” and raise the same issues.
Appellant’s Brief at 2 n.2.
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the findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the PCRA court level.”
Commonwealth v. Conforti, 303 A.3d 715, 725 (Pa. 2023) (citation
omitted).
In both of his issues, Appellant asserts first PCRA counsel rendered
ineffective assistance by failing to claim trial counsel’s ineffectiveness, in
relation to Appellant’s underlying claims of error. See Appellant’s Brief at 13-
17, 19. Where a petitioner “alleges multiple layers of ineffectiveness, he is
required to plead and prove, by a preponderance of the evidence, each of the
three prongs of [the IAC test] relevant to each layer of representation.”
Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022). “In
determining a layered claim of ineffectiveness, the critical inquiry is whether
the first attorney that the defendant asserts was ineffective did, in fact, render
ineffective assistance of counsel.” Commonwealth v. Burkett,
5 A.3d 1260,
1270 (Pa. Super. 2010). “Additionally, counsel cannot be deemed ineffective
for failing to raise a meritless claim.” Treiber,
121 A.3d at 445.
Instantly, Appellant concedes that he raises both of his issues for the first
time on appeal, but claims the issues are nevertheless reviewable under
Bradley, supra, and entitle him to collateral relief. Appellant’s Brief at 2, 15-
17, 19. The Commonwealth concedes that Appellant “appears to
satisfy [Bradley’s] procedural prerequisites.” Commonwealth Brief at 9.
However, the Commonwealth maintains, it is unnecessary to afford Appellant
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relief or again remand this matter for further proceedings, where (1)
Appellant’s underlying claims of error lack merit on their face (for reasons
explained infra); and (2) first PCRA counsel cannot be deemed ineffective for
failing to raise meritless claims. See id. at 10-16.
We initially recognize that in Bradley, our Supreme Court acknowledged
that remand may be proper in certain cases where IAC claims are raised on
appeal in the first instance:
In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised ineffectiveness
claims. However, in other cases, the appellate court may need to
remand to the PCRA court for further development of the record and
for the PCRA court to consider such claims as an initial
matter. Consistent with our prior case law, to advance a request for
remand, a petition[er] would be required to provide more than mere
boilerplate assertions of PCRA counsel’s ineffectiveness[]; however,
where there are material facts at issue concerning claims
challenging counsel’s stewardship and relief is not plainly
unavailable as a matter of law, the remand should be afforded[.]
Bradley, 261 A.3d at 402 (internal citations, quotation marks, brackets, and
footnote omitted; emphasis added); see also Parrish, 273 A.3d at 1002
(same). However, “Bradley did not guarantee a PCRA petitioner substantive
review of claims of PCRA counsel’s ineffectiveness, nor did it create an
absolute right to remand for development of those claims.” Lawrence, 309
A.3d at 155.
Instantly, the record demonstrates that Appellant’s first opportunity to
raise both of his claims asserting first PCRA counsel’s IAC arose upon the filing
of Appellant’s appellate brief, through current PCRA counsel, on March 7,
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2025. Appellant also has undisputedly met the procedural prerequisites of
Bradley. Accordingly, we address Appellant’s issues to determine whether
they entitle him to collateral relief and/or a remand under Bradley.
In his first issue, Appellant argues the Commonwealth deprived him of
due process, in violation of Brady v. Maryland, 373 U.S. 83 (1963),24 “when
it failed to disclose the non-identification of Appellant during a photo array.”
Appellant’s Brief at 17 (capitalization modified). Appellant maintains that,
effective October 1, 2020, the Philadelphia District Attorney’s Office has an
“open file” policy, permitting defense counsel to review and inspect the
Commonwealth’s case file.
Id. Appellant avers the case file “contains an
affidavit of probable cause that was presumably provided to trial counsel.” Id.
at 18. According to Appellant, current PCRA counsel’s review of the case file
disclosed that “there is nothing in the file showing that the [Commonwealth]
ever revealed to [trial] counsel the name” of an individual identified in the
affidavit of probable cause only as “Witness 1, who did not select Appellant
from [a photographic] array.” Id. (footnote omitted). Appellant maintains
the case file identified “Witness 1” as Ms. Boyle, i.e., the eyewitness to the
shooting who testified at trial; Ms. Boyle was not questioned regarding her
inability to identify Appellant from the photographic array. Id. Appellant
contends trial counsel’s failure to question Ms. Boyle concerning her inability
____________________________________________
24 Brady,
373 U.S. at 87 (holding that due process prohibits the prosecution
from suppressing evidence material to guilt or punishment).
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to identify Appellant from the array “itself constitutes some evidence that [Ms.
Boyle’s] name was not provided as having not made an identification.” Id.
Appellant thus argues that 1) the Commonwealth’s alleged failure to
disclose Ms. Boyle’s non-identification of Appellant in the photo array violated
his due process rights; and 2) “[first] PCRA counsel was ineffective for failing
to avail herself of the [Commonwealth’s] open file policy.” Id. at 19.
Appellant submits, however, that “the record before this Court does not permit
resolution” of his Brady claim, and that we should therefore “remand for
further development of [first] PCRA counsel’s ineffectiveness and prongs 2
and 3 of the Brady analysis” (discussed infra). Id.; see also id. (“Appellant
submits that there is sufficient facial merit to this claim to support remand for
‘further development’ per Bradley.”).
The Commonwealth counters that “the existing record establishes that
the [non-identification] evidence is immaterial[,] … because Witness 1’s non-
identification of [Appellant] was fully consistent with [Ms.] Boyle’s non-
identification of [Appellant] in her out-of-court statement and in-court
testimony.” Commonwealth Brief at 14 (emphasis in original). Accordingly,
the Commonwealth concludes, “[Appellant’s] claim fails on its face,” and first
PCRA counsel cannot be deemed ineffective for failing to raise a meritless
claim of error. Id. at 16; see also id. (“[A] third remand for futile further
proceedings is not warranted.”).
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Initially, we recognize that a Brady claim “presents a question of law,
for which our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa. 2020).
Concerning alleged Brady violations, “[t]he defendant bears the burden of
demonstrating that the Commonwealth withheld or suppressed evidence.”
Commonwealth v. Smith,
17 A.3d 873, 887 (Pa. 2011) (citation omitted).
“In the PCRA context, a petitioner must demonstrate that the alleged Brady
violation so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Commonwealth
v. Mickeals,
335 A.3d 13, 24 (Pa. Super. 2025) (citation omitted).
Our Supreme Court has recently reiterated that
to establish a Brady violation, the evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued. Evidence is material and
must be disclosed if there is a reasonable probability that
the result of the proceedings would have been different
had it been disclosed. However, the mere possibility that
undisclosed evidence may have helped the defense or might have
affected the outcome of the trial does not establish materiality. In
evaluating whether a reasonable probability of a different outcome
has been demonstrated, the question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict worthy of
confidence. As such, a defendant need not demonstrate there
would not have been enough left to convict after discounting the
inculpatory evidence in light of the undisclosed evidence, but need
only show that the favorable evidence could reasonably be taken
to put the whole case in such a different light as to undermine
confidence in the verdict.
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Commonwealth v. Johnson, 335 A.3d 685, 717 (Pa. 2025) (quotation
marks, brackets, and citations omitted; emphasis added). Furthermore,
“Brady evidence may not be cumulative of other evidence, cannot have
been equally available to the defense, and cannot have been discoverable
through the exercise of reasonable diligence[.]” Commonwealth v.
Simpson,
66 A.3d 253, 264 (Pa. 2013) (citations omitted; emphasis added).
Instantly, applying Bradley, we determine (1) Appellant has failed to
establish any “material facts at issue concerning claims challenging [first
PCRA] counsel’s stewardship” in connection with Appellant’s Brady challenge;
and (2) relief on this challenge is “plainly unavailable as a matter of law[.]”
Bradley, 261 A.3d at 402. Our review discloses that, at trial, Ms. Boyle was
unable to identify the individuals who fired shots at the victim. Ms. Boyle
testified that she had met the victim approximately two or three months prior
to the incident. N.T., 5/18/14, at 40. Although Ms. Boyle testified she
recognized the victim, she explicitly stated, “I didn’t get a good look at the
guys that had th[e] guns” while watching the incident unfold from her vantage
point in her second-floor apartment. Id. at 20; see also id. at 33 (Ms. Boyle
denying that she had ever seen the victim’s assailants); id. at 77 (Ms. Boyle
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agreeing that, when she observed the incident, she was focused on the victim,
and not his assailants).25
In his brief, Appellant makes no reference to Ms. Boyle’s above-
summarized testimony, nor does he make any effort to explain how the
alleged withholding of the fact that Ms. Boyle was unable to identify Appellant
in a photographic array prejudiced him. See Commonwealth v. Wholaver,
177 A.3d 136, 144 (Pa. 2018) (“A PCRA petitioner must address each of [the
IAC test] prongs on appeal.” (citing Commonwealth v. Natividad,
938 A.2d
310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden
of pleading and proving each of the [IAC test prongs] on appeal[.]”));
Commonwealth v. Lawrence,
313 A.3d 265, 278 n.3 (Pa. Super. 2024) (“It
is well settled that this Court will not act as counsel and will not develop
arguments on behalf of an appellant.” (citation, brackets, and quotation marks
omitted)). Because Ms. Boyle’s inability to identify Appellant in a photographic
array was plainly consistent with, and cumulative of, her trial testimony,
Appellant’s first issue is meritless on its face, and does not require remand for
an evidentiary hearing. See Simpson,
66 A.3d at 264; Bradley, 261 A.3d
at 402.
____________________________________________
25 When pressed by the Commonwealth, Ms. Boyle was only able to recall that
the perpetrators “were black, medium build, they had dark clothing on …. I
believe they had facial hair as well[.]” N.T., 5/18/14, at 28; see also id. at
57.
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In his second issue, Appellant claims (1) the trial court illegally
sentenced him to the extent it imposed consecutive terms of imprisonment
for two inchoate offenses, i.e., attempted kidnapping and “Conspiracy”;26 and
(2) trial counsel, and first PCRA counsel, were ineffective for failing to
challenge this error. See Appellant’s Brief at 9-17. Appellant cites section
906 of our Crimes Code, which provides “[a] person may not be convicted of
more than one of the inchoate crimes of criminal attempt, criminal solicitation
or criminal conspiracy for conduct designed to commit or to culminate in the
commission of the same crime.” Id. at 9-10 (quoting 18 Pa.C.S.A. § 906).
Appellant contends that
the trial court had no basis for assigning an object to the
conspiracy because there was no way to know whether the jury
found Appellant guilty of conspiracy with the object being
aggravated assault or attempt to kidnap. If the jury found the
latter, a consecutive sentence was prohibited by section 906.
Id. at 11.
Appellant emphasizes the trial court’s following instruction regarding the
objects of the conspiracy:
The accused[s] in this case are being charged with
Conspiracy. The Commonwealth is alleging that each
defendant conspired with the other and with [] Roane.
The Commonwealth is alleging that the crime of
attempted murder, aggravated assault, and/or
attempted kidnap were the objects of the conspiracy.
____________________________________________
26 Appellant points out that the jury made no finding as to the underlying
object of the conspiracy in either its verdict sheet or in open court. Appellant’s
Brief at 11-12.
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N.T., 5/15/2014, at 43 [(emphasis added by Appellant)]…. [The
trial court’s] use of the disjunctive when describing the objects of
the conspiracy, “attempted murder, aggravated assault, and/or
attempted kidnap were the objects of the conspiracy” means that
the jury could have found the object of the conspiracy was to
commit kidnapping. The object of the conspiracy was not
specified when the jury delivered its verdict in open court[. ]N.T.,
5/16/2014, at 4… (jury delivered a guilty verdict on the conspiracy
count without specifying the object). Nor was the object of the
conspiracy [] specified on the verdict sheet. Rather, the verdict
sheet simply has a box with “Conspiracy” and no interrogatory
regarding the object of the conspiracy was given to the jury. FN8
FN8 The [trial] court posed an interrogatory for the
aggravated assault count, giving the jury a choice between
[whether the evidence supported that Appellant caused the
victim] serious bodily injury, or not.
Appellant’s Brief at 11-12 (footnote and emphasis in original; some record
citations omitted; citations modified).
Appellant claims he met his burden of proving all three prongs of the
IAC test, where “this sentencing claim has more than arguable merit and, if
accepted, it would result in a reduction of Appellant’s sentence. Therefore[,
Appellant’s claim] meets prongs (1) and (3)” of the IAC test. Appellant’s Brief
at 16. Appellant contends he also met the second, “reasonable basis” prong,
where
no lawyer would intentionally decide to not raise a claim that could
have resulted in a reduction of [Appellant’s] sentence by about a
third.FN11
FN11 Appellant was sentenced to 21-42 years [in prison].
If
the sentencing error is corrected, and his 6-12-year
consecutive sentence for conspiracy is removed, the new
sentence would be 15-30 years.
Id. at 16-17 (footnote in original).
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Finally, Appellant maintains no remand for further development of the
record under Bradley is necessary, as “[t]he facts underlying the substance
of the identified sentencing error are clear and [] based on the trial court
record.” Id. at 15. “Nor does Appellant believe that further development is
required regarding the underlying ineffectiveness claim.” Id. at 16.
Nevertheless, Appellant states he “would not object to [a] remand for
appropriate hearings” on this issue. Id. at 17.
The Commonwealth counters
[Appellant’s] separate sentences for the inchoate offenses of
attempted kidnapping and conspiracy to commit aggravated
assault are legal because the record establishes the existence of
two conspiratorial agreements, separated by time, with different
criminal objectives in mind.
Commonwealth Brief at 13.
[Appellant] and his accomplices attempted to kidnap the victim by
shoving him into their car. That attempt failed when the victim
ran away. Only then did [Appellant] and Thomas agree to assault
the victim by shooting him as he ran away.
Id. at 11 (internal citations to record omitted). The Commonwealth
emphasizes that the indictment charged Appellant with conspiracy to commit
aggravated assault and/or attempted murder. Id. at 13; Indictment,
1/11/13, at 2-3 (unpaginated). Moreover, according to the Commonwealth,
the jury asked the following question as to conspiratorial liability
during their deliberations: “If there is a conspiracy to commit
agg/assault, then if one of the conspirators is guilty of A/A, is the
other conspirator necessarily guilty of A/A too?”
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Id. at 6 (emphasis omitted).27 The Commonwealth suggests that the
conspiracy jury question indicates the jury intended to convict Appellant on
conspiracy to commit aggravated assault. Id. at 6, 13.
Contrary to the Commonwealth, Appellant asserts in his reply brief that
the fact that Appellant was indicted only for conspiracy to attempt
to commit murder or aggravated assault, does not shed light on
the object of the conspiracy that was actually argued to the jury 28
____________________________________________
27 We hereinafter refer to this purported jury question as the “conspiracy jury
question[,]” which was dated May 15, 2014, and purportedly signed by the
jury foreperson. The Commonwealth does not provide a record citation
regarding the conspiracy jury question; rather, it merely attached a copy of
the document to its appellate brief as an exhibit. Commonwealth Brief, Exhibit
B. Our review of the record discloses a copy of the conspiracy jury question
is contained in the trial exhibits of record, as the final document. Moreover,
immediately prior to the jury’s rendering its verdict on May 16, 2014, the trial
court briefly noted on the record that the jury had submitted three questions
to the trial court during deliberations. See N.T., 5/16/14, at 2. Significantly,
however, these three questions did not include the conspiracy jury question,
and the trial court made no mention of the conspiracy jury question.
Id. Immediately after the trial court responded to the jury’s three other
questions, the jury rendered its verdict. Id. at 3-5.
28 Appellant emphasizes that the prosecutor stated, in her closing argument,
the following:
The defendants are charged with 3 major crimes in this case.
They are charged with attempted murder, attempted kidnapping,
they’re charged with conspiracy. That’s the most important
charge for you to think about. Because conspiracy is what ties
[Appellant and Thomas] together. ….
In this case, this entire incident, from the beginning to the end,
was a conspiracy.
N.T., 5/15/14, at 19-20; see also Appellant’s Reply Brief at 2-3. According
to Appellant,
(Footnote Continued Next Page)
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and upon which the jury was instructed. In the final analysis then,
it is irrelevant that Appellant was not charged by the Indictment
with a conspiracy to kidnap – that crime was argued to the jury
and the court instructed on it.
Appellant’s Reply Brief at 3 (footnote added).
Upon review, we determine Appellant’s issue meets all of Bradley’s
above-described requirements to entitle him to a remand for further
development of the record regarding this issue. Specifically, Appellant (1)
“provide[d] more than mere boilerplate assertions of [first] PCRA counsel’s
ineffectiveness”; (2) established that “there are material facts at issue
concerning claims challenging [first PCRA] counsel’s stewardship”; and (3)
demonstrated that “relief is not plainly unavailable as a matter of law.”
Bradley, 261 A.3d at 402 (emphasis added). As explained supra, the trial
court instructed the jury that the Commonwealth maintained “the objects of
the conspiracy” could include “attempted murder, aggravated assault, and/or
attempted kidnap[.]” N.T., 5/15/14, at 43. In rendering its verdict, the jury
at no time made a finding as to the underlying object of the conspiracy. See
Verdict Sheet, 5/16/14; N.T., 5/16/14, at 4. Nevertheless, the trial court
____________________________________________
[t]he prosecutor did not distinguish between conspiracy to commit
an attempt to kidnap or a conspiracy to attempt to commit murder
or aggravated assault. Rather, as the [trial] court did in its
instructions, [the prosecutor] referred to the entire incident as
encompassing two conspiracies, not just the one charged in the
indictment[.]
Appellant’s Reply Brief at 2.
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unilaterally assigned to Appellant’s conspiracy conviction the underlying object
of “Aggravated Assault.” Sentencing Order, 7/25/14, at 1 (unpaginated); Trial
Disposition Form, 5/16/14, at 2.
The PCRA court29 had no opportunity to substantively consider
Appellant’s newly-raised claim.30 Our Supreme Court, in Commonwealth v.
Greer, 316 A.3d 623 (Pa. 2024), emphasized “the role of the PCRA court as
the court of first impression[,]” stating that
[t]he PCRA court should have the first opportunity to address
factual and legal claims.FN4 See Commonwealth v. Scolieri, …
813 A.2d 672, 678 (Pa. 2002). An appellate court’s proper role is
to review the PCRA court’s decision for an error of law or an
abuse of discretion. See Commonwealth v. Mason, … 130 A.3d
601, 617 (Pa. 2015).
FN4 This preference does not, however, contradict Bradley’s
observation that “[i]n some instances, the record before the
appellate court will be sufficient to allow for disposition of
any newly-raised ineffectiveness claims.” Bradley, 261
A.3d at 402. The preference applies only where there is any
question about the merit of the newly-raised
ineffectiveness claim.
Greer, 316 A.3d at 630-31 (footnote in original; emphasis added). As noted
in Bradley, our appellate courts are not “tasked with developing the record
____________________________________________
29 We reiterate that the PCRA judge also presided at Appellant’s trial.
30 As explained supra, in its Supplemental Opinion, the PCRA court recognized
it was “[c]onstrained” by the Shields III decision, which remanded for further
PCRA court analysis of Appellant’s now-abandoned IAC claim. Supplemental
Opinion, 7/10/24, at 1. The Supplemental Opinion pertained to only that
abandoned claim, see id. at 2-6, and in no way addressed Appellant’s claim
related to the legality of his sentence.
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or acting as a court of original jurisdiction”; rather, they “have the ability to
grant or deny relief on straightforward claims, as well as the power to
remand to the PCRA court for the development of the record.” Bradley, 261
A.3d at 402-03 (emphasis added); see also Commonwealth v. Shaw, 247
A.3d 1008, 1017 (Pa. 2021) (“[T]he PCRA court is ‘the appropriate—and,
indeed, the only—forum for the evidentiary and factual development’” of PCRA
claims (quoting Commonwealth v. Koehler,
229 A.3d 915, 937 (Pa.
2020)).
We are guided by our decision in Commonwealth v. Riley, 811 A.2d
610 (Pa. Super. 2002). In that case, the Commonwealth charged the
defendant with one count each of conspiracy, burglary, and theft by unlawful
taking or disposition.
Id. at 612. A jury found the defendant guilty of criminal
conspiracy, and not guilty of the remaining charges.
Id. Appellant filed a
post-trial motion for extraordinary relief, challenging the sufficiency and
weight of the evidence supporting his conviction.
Id. at 612-13. At a hearing
on the motion, the trial court “acknowledge[ed] the existence of an ambiguity
in the jury’s verdict[.]”
Id. at 613. Specifically, the court stated that “[the
defendant] was convicted by a jury of conspiracy to commit either theft or
burglary. I’m not sure whether that was determined.”
Id. (emphasis added);
see also
id. (observing “that burglary is graded as a felony of the first degree
and theft is a felony of the third degree”). The trial court ruled that it was
“going to make a finding that this conviction is a felony of the first degree[,]”
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based upon its “belie[f] that the jury did find [the defendant] guilty of
conspiracy to commit both” burglary and theft. Id. (citation omitted).
The defendant filed a direct appeal, challenging the weight and
sufficiency of the evidence, as well as the trial court’s determination that the
jury found the defendant guilty of the more serious offense of conspiracy to
commit burglary, as opposed to theft. Id. at 613-14. This Court affirmed the
conviction and rejected Appellant’s weight and sufficiency challenges. See
id.
at 614-17. However, we held the trial court unlawfully sentenced the
defendant on conspiracy to commit burglary, where the jury’s general
conspiracy verdict was ambiguous:
[I]n the absence of clear evidence of the jury’s intent to the
contrary, a general conspiracy verdict must be resolved in
favor of the defendant, and may be construed only as a
conviction of conspiracy to commit the least serious underlying
offense for which the jury could properly have found the defendant
to have conspired to commit. Consequently, while the record here
supports a verdict of conspiracy to commit burglary or theft, the
jury’s ambiguous verdict must be resolved in [the defendant’s]
favor, and we must conclude that the trial court erred in
sentencing [the defendant] for the more serious offense of
conspiracy to commit burglary, and should have sentenced him
for conspiracy to commit theft by unlawful taking.
Id. at 620-21 (footnote omitted; emphasis added). Accordingly, we vacated
the defendant’s judgment of sentence and remanded for resentencing.
Id. at
621.
Instantly, the jury’s general conspiracy verdict was ambiguous as to the
underlying object of the conspiracy. Moreover, as discussed supra, the
Commonwealth maintains the jury, during its deliberations, submitted the
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conspiracy jury question to the trial court, which purportedly evinced its intent
to convict Appellant of conspiracy to commit aggravated assault. However,
the record regarding this matter is unclear, and the trial court made no
mention of the conspiracy jury question on the record, despite expressly
responding to three other questions that the jury had submitted. N.T.,
5/16/14, at 2.
In sum, and mindful of the unique procedural posture and irregularities
of this case,31 we conclude the most prudent course is to remand for the PCRA
court to consider, in the first instance, Appellant’s newly-raised IAC claim
related to the legality of his sentence on the conspiracy conviction. See
Lawrence, 309 A.3d at 156 (concluding remand was appropriate where the
PCRA petitioner raised, for the first time on appeal, an IAC claim regarding his
prior PCRA counsel pursuant to Bradley. Further stating, “because the PCRA
court did not explain its fact finding or basis for dismissing the claims that
were litigated before it, we find ourselves unable to conduct proper appellate
review.”); Parrish, 317 A.3d at 561-62 (where PCRA petitioner properly
raised, for the first time on appeal, claims pursuant to Bradley, “reluctantly[]
remand[ing] the matter to the PCRA court[,]” where it “needs to further
develop the record in this case and consider, in the first instance, Parrish’s
____________________________________________
31We reiterate that the PCRA court on multiple prior occasions, granted
Appellant PCRA relief.
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layered [IAC] claims, all alleging the ineffective assistance of initial PCRA
counsel[.]”).
On remand, we defer to the sound discretion of the PCRA court regarding
the extent and manner of the evidence to be adduced on Appellant’s claim.
However, the PCRA court must consider (1) the jury’s verdict on the
conspiracy charge and the legality of the sentence imposed thereon; (2)
whether the trial court, in delivering its jury charge on conspiracy, intended
to include kidnap or attempted kidnap as an object of the conspiracy; (3) the
significance of the conspiracy jury question purportedly submitted during
deliberations; and (4) whether there is merit to Appellant’s IAC claim related
to the legality of his sentence on the conspiracy conviction.
Based upon the foregoing, pursuant to Bradley and its progeny, we are
constrained to vacate the July 10, 2024, order dismissing Appellant’s PCRA
petition and remand this case for further proceedings on Appellant’s claim of
first PCRA counsel’s IAC, in connection with the underlying legality of sentence
challenge.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
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Date: 10/24/2025
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