J-A29012-23
2024 PA Super 10
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES LAWRENCE :
:
Appellant : No. 987 WDA 2022
Appeal from the PCRA Order Entered July 26, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012037-2013
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY BOWES, J.: FILED: January 22, 2024
James Lawrence appeals from the order that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”) for lack of merit. We
vacate the order and remand for further proceedings.
This case has an extensive history predating these PCRA proceedings
that need not be recounted in full herein. In short, Appellant was convicted
of third-degree murder and carrying a firearm without a license and was
sentenced to an aggregate term of seventeen to thirty-four years of
imprisonment. His direct appeal, in which he challenged the weight of the
evidence, merited no relief. See Commonwealth v. Lawrence, 158 A.3d
183 (Pa.Super. 2016) (unpublished memorandum), appeal denied,
166 A.3d
1212 (Pa. 2017).
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Appellant filed a timely PCRA petition and the PCRA court appointed
counsel. Subsequently, Appellant retained private counsel, who filed an
amended petition. Therein, Appellant raised claims that trial counsel was
ineffective in failing to (1) object to the expert testimony of Detective James
McGee, (2) impeach witness Lateesha Jones with a crimen falsi conviction and
her prior inconsistent statements, and (3) request an instruction pursuant to
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), concerning two
witnesses’ identification of Appellant. He also alleged that the prosecution
violated Brady v. Maryland,
373 U.S. 83 (1963), by withholding evidence of
Ms. Jones’s prior conviction and by not disclosing favorable plea offers
extended to Appellant’s co-defendants.
The PCRA court issued notice of its intent to dismiss Appellant’s petition
without a hearing, but elected to schedule a hearing after receiving Appellant’s
response.1 The hearing, delayed due to the COVID-19 pandemic, was
ultimately conducted on February 14, 2022. At the conclusion of the
proceeding, the PCRA court granted counsel leave to file a brief concerning
the issues raised. After counsel failed to do so, the PCRA court dismissed
Appellant’s petition by order of July 26, 2022. Appellant timely filed a pro se
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1 The trial judge, the Honorable Edward J. Borkowski, recused himself after
appointing PCRA counsel and the case was reassigned to the Honorable Jill
Rangos for the subsequent PCRA proceedings.
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notice of appeal, hired counsel was permitted to withdraw, and another
attorney was appointed to represent Appellant on appeal.
Appellant’s new counsel filed a Pa.R.A.P. 1925(b) statement that
included the issues outlined above. He also filed a motion for the PCRA court
to determine whether Appellant forfeited his right to counsel by failing to
cooperate. This Court entered an order directing the PCRA court to entertain
counsel’s motion or, in the alternative, to consider whether Appellant wished
to proceed pro se upon conducting a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998). Before the PCRA court was able to comply,
Appellant obviated this Court’s order by hiring present PCRA counsel to
represent him. Present counsel requested and received an extension of time
to file a supplemental Rule 1925(b) statement.
In the supplemental statement, Appellant challenged the effectiveness
of prior PCRA counsel by identifying claims that they allegedly failed to raise
or properly litigate. See Commonwealth v. Bradley, 261 A.3d 381, 401
(Pa. 2021) (“[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.”). Those
issues involved trial counsel’s failure to investigate and litigate an alibi defense
or to object to the trial court’s identification jury instruction, as well as prior
PCRA counsel’s posturing of the claim concerning Ms. Jones’s impeachment.
Since the PCRA court had not yet considered the substance of Appellant’s
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Bradley claims, it requested in its Rule 1925(a) opinion that this Court
remand the case for development of the record on those issues. The court
did not offer a discussion of the issues that were litigated at the PCRA hearing.
See PCRA Court Opinion, 1/4/23, at 3-4.
This Court issued a briefing schedule with which Appellant failed to
comply. We again entered a per curiam order remanding the matter to the
PCRA court, this time for a determination as to whether present counsel had
abandoned Appellant. The PCRA court entered an order finding that counsel
had not. Appellant next filed in this Court an application for remand, indicating
that present counsel had mistakenly assumed that the case would be
remanded as requested in the PCRA court’s opinion without further filings, and
requesting that the remand be ordered. This Court denied the application
without prejudice to raise the issue in Appellant’s brief.
In that brief, Appellant states the following issue for our review:
Should this Court honor the [PCRA] court’s request and remand
this matter to permit the PCRA court to evaluate and rule on
claims of [Attorney Pass’s] ineffectiveness for failing to raise
claims of trial counsel ineffectiveness that were timely and
properly raised pursuant to [Bradley, supra], as well as other
claims for relief not addressed in its Rule 1925 opinion?
Appellant’s brief at 2 (unnecessary capitalization omitted).
At the outset, we clarify that 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. As
our Supreme Court has reiterated:
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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 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.
Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) (quoting
Bradley, supra at 402 (cleaned up, emphasis added)).
In advocating for remand in the instant case, Appellant points to the
PCRA court’s concurrence that the matter should be remanded, and bemoans
that the supplemental concise statement, which was Appellant’s first
opportunity to raise his Bradley allegations, was not an appropriate vehicle
to develop such claims. See Appellant’s brief at 8. Appellant further asserts
that the development cannot be done in the appellate brief because “doing so
would necessarily require reference to matters outside of the certified record.”
Id. Appellant further notes that, since the PCRA court did not address the
claims that were litigated below in its Rule 1925(a) opinion, remand would be
necessary in any event for this Court to conduct an appropriate review. Id.
We begin by noting that, to establish a prima facie claim of ineffective
assistance of counsel, a petitioner must plead and offer to prove each of the
following:
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(1) that the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a reasonable basis
designed to effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable
probability that but for the act or omission in question the outcome
of the proceeding would have been different.
Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.Super. 2019)
(cleaned up). “The failure to satisfy any prong of the test for ineffectiveness
will cause the claim to fail.” Commonwealth v. Davis,
262 A.3d 589, 595–
96 (Pa.Super. 2021).
Accordingly, to demonstrate the propriety of a remand here, present
counsel should have, either in the petition for remand or in Appellant’s brief,
explained to this Court how further development of the factual record would
satisfy all three prongs of this test as to each of prior PCRA counsel’s alleged
failings. However, as the Commonwealth properly observes, Appellant’s brief
“contains no argument in support of the claims raised in the supplemental
concise statement.” Commonwealth’s brief at 27. Based upon the case law
above, simply noting in Appellant’s brief that he has complaints and that the
PCRA court requests a remand is inadequate to warrant a remand. See
Parrish, supra at 1006 (“To be entitled to a remand, Parrish must provide
more than mere boilerplate assertions of PCRA counsel's ineffectiveness. That
is, he must establish that there are issues of material facts concerning claims
challenging counsel’s stewardship and that relief may be available.”). Instead,
counsel should have presented the claims to this Court as if they were being
pled in the PCRA petition itself.
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Nonetheless, since we find the requisite allegations in the certified
record, we shall not punish Appellant for counsel’s failure to appreciate the
nuances of this developing area of the law. Specifically, in the supplemental
Rule 1925(b) statement, present counsel detailed the underlying claims
sufficiently to convince us that they have arguable merit, the potential for
prejudice, and present material issues of fact that the PCRA court will be
required to resolve in order to rule upon whether they entitle Appellant to
relief. See Supplemental Pa.R.A.P. 1925(b) statement, 12/12/22, at 4-7.
The Commonwealth concedes “that there may be a basis for this Court
to remand this case for further proceedings.” Commonwealth’s brief at 31.
However, it maintains that some of the underlying issues, particularly those
involving Ms. Jones’s impeachment and the prosecution’s disclosure of the
plea offers extended to Appellant’s co-defendants, are capable of review based
upon the existing record.2 See Commonwealth’s brief at 28-29.
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2 In this vein, we observe that our High Court has recently granted allowance
of appeal to decide:
Whether a court on appeal should rule on the merits of an existing
appeal of a PCRA court order before remanding a case where a
PCRA petitioner raised new/additional layered claims of PCRA
counsel’s ineffectiveness pursuant to [Bradley, supra,] for the
first time before the appellate court, where there were issues of
merit that could have been disposed of prior to remand for new
issues.
Commonwealth v. Greer, 303 A.3d 1053, 1054 (Pa. 2023) (cleaned up).
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Here, though, 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. See, e.g., Commonwealth v.
Hand, 252 A.3d 1159, 1165 (Pa.Super. 2021) (explaining that, “[w]ith the
exception of the PCRA court’s legal conclusions, our standard of review is
deferential,” and that the PCRA court’s credibility determinations are binding
upon us).
Therefore, we conclude that the best course of action is to vacate the
July 26, 2022 order denying Appellant’s PCRA petition and remand for the
PCRA court to consider in the first instance the claims present counsel has
raised pursuant to Bradley. We leave to the PCRA court’s discretion the
extent and manner of the additional evidence to be developed concerning the
new claims. Thereafter, the PCRA court shall enter a new final order disposing
of all claims Appellant has raised in connection with the instant PCRA petition,3
after which any aggrieved party may seek appellate review.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Kunselman joins this Opinion.
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3 See Commonwealth v. Bradley, 261 A.3d 381, 404 (Pa. 2021) (“[W]e
deem the consideration on collateral appeal of claims of PCRA counsel
ineffectiveness to spring from the original petition itself, and that doing so
does not amount to impermissibly allowing a ‘second or subsequent’ serial
petition[.]”).
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Judge Murray concurs in the result.
DATE: 01/22/2024
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