J-A09037-18

                                  2018 PA Super 239

 COMMONWEALTH OF                           :     IN THE SUPERIOR COURT OF
 PENNSYLVANIA                              :          PENNSYLVANIA
                                           :
                                           :
               v.                          :
                                           :
                                           :
 COREY M. DURRETT KING                     :
                                           :     No. 17 WDA 2017
                      Appellant            :

              Appeal from the PCRA Order December 13, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0010053-2013

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

OPINION BY MURRAY, J.:                                  FILED AUGUST 29, 2018

      Corey Durrett King (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. After careful consideration, we vacate the order dismissing

Appellant’s PCRA petition and remand this matter to the PCRA court for a

hearing consistent with this decision.

      We summarize the relevant facts of this case as follows. On June 21,

2013, detectives from the City of Pittsburgh were on a routine patrol in the

South Side neighborhood of Pittsburgh. The detectives were in an unmarked

vehicle that had lights and a siren.           During their patrol, the detectives

observed a maroon Lincoln Town Car, operated by Appellant, driving on South

18th Street.        Almost immediately thereafter, the detectives observed

Appellant’s vehicle collide with a motorcycle. The driver of the motorcycle
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suffered several fractured ribs, a concussion, a punctured lung, and a back

injury.

      Upon witnessing the accident, the detectives activated their vehicle’s

lights and siren. Appellant immediately attempted to flee the scene of the

accident in his vehicle at a high rate of speed with the detectives in pursuit.

During the pursuit, Appellant violated several traffic laws, which included

turning into and speeding through a convenience store parking lot without

signaling. Appellant eventually lost control of his vehicle and crashed in the

yard of a residential homeowner.           The entire vehicle chase lasted

approximately ten blocks, during which the detectives observed Appellant

throw a clear bag containing crack cocaine out of his vehicle. Throughout the

entire chase, the lights and siren of the police vehicle remained activated.

      The PCRA court set forth the procedural history of this case:

          On October 13, 2014[, Appellant] was convicted, after a jury
      trial, of fleeing or attempting to elude police, accidents involving
      death/injury, accidents involving damage and five vehicle code
      violations. This [c]ourt sentenced [Appellant] to a term of
      imprisonment of not less than 1½ years nor more than 3 years
      followed by four years of probation relative to the conviction for
      fleeing and eluding the police. Relative to the conviction for
      accidents involving death/injury, this [c]ourt imposed a
      consecutive sentence of imprisonment of not less than six months
      nor more than twelve months, followed by four years [of]
      probation. Relative to the conviction for accidents involving
      damage, this [c]ourt imposed a consecutive sentence of
      imprisonment of not less than six months nor more than twelve
      months, followed by two years [of] probation. No additional
      penalty was imposed at the remaining counts. The aggregate
      sentence was a term of imprisonment of not less than 2½ years
      nor more than 5 years. [Appellant] filed a timely Notice of Appeal.
      The Superior Court, at 1909 WDA 2014, affirmed the judgment

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      [of sentence]. A Petition for Allowance of Appeal was denied by
      the Pennsylvania Supreme Court on November 16, 2015.

        On March 2, 2016, [Appellant] filed a pro se [PCRA petition.]
      Counsel was appointed and an Amended Petition for [PCRA] relief
      was filed on August 11, 2016[.]

PCRA Court Opinion, 6/26/17, at 2.

      In his PCRA petition, Appellant alleged that his trial counsel was

ineffective for failing to request a jury instruction regarding the defense to the

crime of fleeing or attempting to elude a police officer at Section 3733(c)(1)

of the Pennsylvania Vehicle Code relating to unmarked police cars. See 75

Pa.C.S.A. § 3733(c)(1). Appellant argued that trial counsel should have raised

this defense because the police vehicle that pursued him was unmarked and

the police officers inside the vehicle were in plain clothes.

      On November 22, 2016, the PCRA court filed notice of its intent to

dismiss Appellant’s PCRA petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907. On December 12, 2016, Appellant filed a

timely response to the Rule 907 notice. On December 13, 2016, the PCRA

court formally dismissed Appellant’s PCRA petition without a hearing.

Appellant timely appealed to this Court.

      On appeal, Appellant presents the following issue for our review:

      Appellant was convicted of Fleeing and Attempting to Elude the
      Police. At trial, evidence showed that Appellant was pursued by
      plain-clothes officers in an “unmarked” car, which he claimed
      implicated a statutory defense and jury instruction that trial
      counsel never argued under 75 Pa.C.S.[A.] § 3733(c)(1).
      Consequently[,] he raised a claim of ineffective assistance, which
      the lower court summarily dismissed. Was the summary dismissal

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      of that claim based upon an erroneous interpretation of Section
      3733(c)(1)?

Appellant’s Brief at 4.

      Appellant challenges the PCRA court’s denial of his ineffective assistance

of counsel claim. “This Court’s standard of review regarding an order denying

a petition under the PCRA is whether the determination of the PCRA court is

supported    by   the     evidence   of   record   and   is   free   of    legal   error.”

Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017). “The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.

Super. 2011).

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the 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)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”             Id. (citation omitted).          If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Id.

      “Relating to the reasonable basis prong, [g]enerally, where matters of

strategy    and   tactics   are   concerned, counsel’s        assistance    is     deemed

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constitutionally effective if he chose a particular course that had some

reasonable    basis    designed   to    effectuate   his   client’s   interests.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (quotations and

citation omitted).    “Courts should not deem counsel’s strategy or tactic

unreasonable unless it can be concluded that an alternative not chosen offered

a potential for success substantially greater than the course actually pursued.”

Id. (quotations and citation omitted).       To demonstrate prejudice in an

ineffective assistance of counsel claim, “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.”       Commonwealth v.

King, 57 A.3d 607, 613 (Pa. 2012).

      Appellant argues that the PCRA court erred in concluding that trial

counsel was not ineffective for failing to raise the defense for fleeing or

attempting to elude a police officer set forth in Section 3733 of the Vehicle

Code. Section 3733 provides, in pertinent part, as follows:

      (a) Offense defined.--Any driver of a motor vehicle who willfully
      fails or refuses to bring his vehicle to a stop, or who otherwise
      flees or attempts to elude a pursuing police officer, when given a
      visual and audible signal to bring the vehicle to a stop, commits
      an offense as graded in subsection (a.2).

      (c) Defenses.--

         (1) It is a defense to a prosecution under this section that the
         pursuing police officer’s vehicle was not clearly identifiable by
         its markings or, if unmarked, was not occupied by a police
         officer who was in uniform and displaying a badge or other sign
         of authority.


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75 Pa.C.S.A. § 3733(a), (c)(1) (emphasis added).

       In rejecting his ineffective assistance of counsel claim, the PCRA court

concluded that Appellant was not prejudiced by trial counsel’s failure to

request a jury instruction under Section 3733(c)(1).        PCRA Court Opinion,

6/26/17, at 4. The court explained:

       The trial court record clearly noted that the police officers pursuing
       [Appellant]’s vehicle had activated the lights and siren of their
       vehicle during the pursuit. This [c]ourt believes that the activation
       of the lights and siren rendered the vehicle “clearly identifiable”
       as a police vehicle. This conclusion is buttressed by the fact that
       [Appellant] continued to drive his vehicle almost twice the posted
       speed limit and over a distance of ten blocks in an effort to avoid
       capture.     This [c]ourt believes the instruction sought by
       [Appellant] is not supported by these facts and that any request
       for an instruction would have been denied. Therefore, trial
       counsel could not be ineffective for failing to request such [the]
       instruction.

Id. at 4-5.

       Appellant argues that the evidence reflected that the police vehicle that

pursued Appellant was (1) “unmarked” and (2) “was not occupied by a police

officer who was in uniform.” Appellant’s Brief at 21; N.T., 8/12/14, at 54-55,

179.    Appellant contends that, given this evidence, the record clearly

supported a request for a jury instruction related to Section 3733(c)(1) and

trial counsel’s failure to request such an instruction resulted in patent

prejudice to him. Appellant asserts that the PCRA court wrongly concluded

“that the pursuing police vehicle’s ‘lights and siren’ constituted the vehicle’s

‘markings’ making it ‘clearly identifiable.’” Id. at 20. Appellant maintains that

the PCRA court arbitrarily defined the term “markings” to include a vehicle’s

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J-A09037-18


“lights and siren” when state regulations specifically identify “lights and sirens”

as separate and distinct from a police vehicle’s “markings.”        Id.    Instead,

Appellant argues that a police vehicle’s “markings” are the decals and graphics

that identify the agency of department of the vehicle. Id. at 21.

      Appellant’s PCRA claim presents a question of statutory interpretation.

“Generally speaking, under the rule of lenity, penal statutes are to be strictly

construed,    with   ambiguities    resolved    in   favor   of   the     accused.”

Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015). Our Supreme Court

has explained:

         In matters involving statutory interpretation, the Statutory
      Construction Act directs courts to ascertain and effectuate the
      intent of the General Assembly. 1 Pa.C.S.[A.] § 1921(a). A
      statute’s plain language generally provides the best indication of
      legislative intent. In construing the language, however, and
      giving it effect, we should not interpret statutory words in
      isolation, but must read them with reference to the context in
      which they appear.

          The United States Supreme Court also takes a contextual
      approach in assessing the plain language of statutes and in
      determining if an ambiguity exists. See generally King v.
      Burwell, [] 135 S .Ct. 2480, 2489 [] (2015) (“If the statutory
      language is plain, we must enforce it according to its terms. But
      oftentimes the meaning – or ambiguity – of certain words or
      phrases may only become evident when placed in context. So
      when deciding whether the language is plain, we must read the
      words in their context and with a view to their place in the overall
      statutory scheme.”      (internal quotation marks and citations
      omitted)); Yates v. United States, [] 135 S. Ct. 1074, 1081-82
      [] (2015) (“‘[T]he plainness or ambiguity of statutory language is
      determined [not only] by reference to the language itself, [but as
      well by] the specific context in which that language is used, and
      the broader context of the statute as a whole.’ Ordinarily, a word’s
      usage accords with its dictionary definition. In law as in life,


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J-A09037-18


      however, the same words, placed in different contexts, sometimes
      mean different things.” (internal citations omitted)).

          When a statute is ambiguous, we may go beyond the relevant
      texts and look to other considerations to discern legislative intent.
      Where statutory or regulatory language is ambiguous, this Court
      may resolve the ambiguity by considering, inter alia, the
      following: the occasion and necessity for the statute or regulation;
      the circumstances under which it was enacted; the mischief to be
      remedied; the object to be attained; the former law, if any,
      including other statutes or regulations upon the same or similar
      subjects; the consequences of a particular interpretation; and
      administrative interpretations of such statute. [1 Pa.C.S.A. §
      1921(c)].

Commonwealth v. Giulian, 141 A.3d 1262, 1267-68 (Pa. 2016) (some

citations omitted or modified). Additionally, “[w]hen there is an interpretation

available that gives effect to all of the statute’s phrases and does not lead to

an absurd result, that interpretation must prevail.”       Commonwealth v.

McCoy, 962 A.2d 1160, 1168 (Pa. 2009).

      This case turns on the question of what constitutes a police vehicle’s

“markings” and consequently, how we are to define a “marked police vehicle”

and an “unmarked police vehicle.” As Appellant argues, the manner in which

the PCRA court in this case interprets Section 3733(c)(1) assumes that a

police vehicle’s “lights and siren” constitute “markings.”      This reading of

Section 3733(c)(1) permitted the PCRA court to disregard the qualifying

language in the provision stating that the defense is applicable where the

police vehicle is “unmarked” and “not occupied by a police officer who was in

uniform and displaying a badge or other sign of authority.” 75 Pa.C.S.A. §

3733(c)(1).

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      Section 3733(c)(1) provides no definition of the term “markings.” Given

the context of this case and the statutory provision at issue, the term

“markings” has at least two plausible definitions.      On the one hand, it is

conceivable to conclude, as the PCRA court did in this case, that the term

“markings” encompasses a vehicle’s “lights and siren,” as cars equipped with

lights and sirens tend to identify the vehicles as police vehicles to the general

public. On the other hand, it is also conceivable to conclude, as Appellant

argues, that the term “markings” only encompasses a car’s decals and

graphics that identify it as a police vehicle.     Indeed, the plain language

definition of “marking” is “the act, process, or an instance of making a mark”

and a “mark” is defined as “a written or printed symbol.”       Markings/Mark,

Merriam Webster’s Collegiate Dictionary 712 (10th ed. 1993). Given the

multiple plausible definitions for “markings” in this context, we conclude that

the term is ambiguous as utilized in Section 3733(c)(1).

      Consequently, because the term “markings” is ambiguous, it is also

unclear how the General Assembly intended to define what constitutes a

“marked police vehicle” and an “unmarked police vehicle.” We may, therefore,

turn to the relevant regulatory provisions in the Pennsylvania Administrative

Code to ascertain the legislature’s intent in utilizing these terms.      See 1

Pa.C.S.A. § 1921(c).

      The provisions of the Pennsylvania Administrative Code governing the

use of unmarked police vehicles is 37 Pa. Code §§ 42.1-42.22. Section 42.3


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J-A09037-18


specifically defines the terms “[m]arked police vehicle” and “[u]nmarked

police vehicle” as follows:

      Marked police vehicle--A police vehicle that is equipped with at
      least one light-bar assembly and displays graphics, markings or
      decals identifying the agency or department on a minimum of
      three sides (front, rear, left or right).

                                *     *      *

      Unmarked police vehicle--A police vehicle not equipped with a roof
      mounted light-bar assembly. The vehicle may display graphics,
      markings or decals, identifying the agency or department.

37 Pa. Code § 42.3 (emphasis added).

      Thus, under Section 42.3, a marked police vehicle contains (1) one light-

bar assembly and (2) decals that identify the agency or department on at

least three sides. Id. An unmarked police vehicle, under Section 42.3, is (1)

not equipped with a roof mounted light-bar that (2) may display graphics or

decals identifying the agency or department. Id.

      Accordingly, based on these definitions, we hold that the term

“markings” in Section 3733(c)(1) does not include a police vehicle’s “lights

and siren.”    Instead, Section 42.3 makes clear that a police vehicle’s

“markings” only include graphics or decals identifying the department or

agency of the vehicle, as the term “light-bar” is referenced separate and apart

from any discussion relating to markings, graphics, or decals. See id.

      Therefore, turning our attention to the facts of this case, we conclude

that the PCRA court erred in finding that trial counsel was not ineffective for

failing to raise the defense in Section 3733(c)(1). There is no dispute in this

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J-A09037-18


matter that the car at issue did not display any decals or graphics identifying

it as a police vehicle. The testimony at trial of the detectives who arrested

Appellant unequivocally indicates that they were driving an unmarked police

vehicle that only had lights and a siren.      N.T., 8/12/14, at 54-55, 179.

Additionally, the record reflects that at the time they were pursuing Appellant,

the detectives were not in uniform, but were in plain clothes. Id. Accordingly,

we hold that because the police vehicle that pursued Appellant was unmarked

and that the officers inside that unmarked vehicle were not in uniform,

Appellant’s claim regarding the defense of Section 3733(c)(1) has merit.

      We note that the Commonwealth concedes this point:

      [T]he Commonwealth acknowledges that Chapter 42 of the
      Pennsylvania Code, Use of Unmarked Vehicles, contains
      definitions for unmarked and marked vehicles. In particular, a
      “marked police vehicle” is one “that is equipped with at least one
      light-bar assembly and displays graphics, markings or decals
      identifying the agency or department on a minimum of three sides
      (front, rear, left or right),” while an “unmarked police vehicle” is
      one “not equipped with a roof mounted light-bar assembly. The
      vehicle may display graphics, markings or decals, identifying the
      agency or department.” 37 Pa. Code § 42.3.

      Should this Court find the term “markings” to be ambiguous, it
      may very well be that the police vehicle in this matter was
      “unmarked” pursuant to the Pa. Code’s definition of unmarked
      police vehicle since it was not equipped with a roof mounted light
      bar assembly, which would have allowed appellant to raise that
      portion of § 3733(c)(1)’s defense at trial.

Commonwealth’s Brief at 16 n.17.




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J-A09037-18


       Furthermore, while one could reasonably conclude, based on the

circumstantial evidence in this case,1 that Appellant was aware that a police

vehicle was pursuing him, the plain language of Section 3733(c)(1) does not

call for an analysis of what a fleeing perpetrator may have known or not

known. Instead, the focus of Section 3733(c)(1) is solely on the vehicle, i.e.,

whether it is marked or unmarked, and if unmarked, whether the police

officers inside the vehicle are in uniform. The PCRA court’s interpretation of

Section 3733(c)(1) would require us to ignore all of the language in the

provision other than whether the car was “clearly identifiable” as a police

vehicle, and render the language of the provision relating to “markings” and

unmarked vehicles superfluous. This would be contrary to statutory and case

law. See McCoy, 962 A.2d at 1168 (“We are not permitted to ignore the

language of a statute, nor may we deem any language to be superfluous. 1

Pa.C.S. § 1921(a).”).        If the General Assembly had desired to make the

defense of Section 3733(c)(1) inapplicable based on a police vehicle’s

activation of its lights and siren, it could have done so.2




____________________________________________


1  This evidence includes, as set forth in the facts above, testimony indicating
that Appellant fled from the pursuing detectives, who were in a vehicle with
its lights and siren activated, at a high rate of speed while violating several
traffic laws, and that he threw a clear bag out of the vehicle that contained
crack cocaine. See N.T., 8/12/14, at 62-63, 66, 73, 102.

2 We note that our conclusion comports with the notion that police vehicles
are not the only type of vehicles that utilize lights and sirens.

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      We further conclude that Appellant was prejudiced by trial counsel’s

failure to raise Section 3733(c)(1). Given the clear applicability of Section

3733(c)(1) to this case, there exists a reasonable probability that the outcome

of Appellant’s trial would have been different had trial counsel raised this

defense.

      Because Appellant has satisfied both the arguable merit and prejudice

prongs of the ineffective assistance of counsel test, we must determine

whether Appellant’s trial counsel possessed a reasonable basis for not raising

the defense for fleeing or attempting to elude a police officer set forth Section

3733(c)(1). The PCRA court, however, dismissed Appellant’s PCRA petition

without a hearing and consequently, no record exists as to whether Appellant’s

counsel had a reasonable basis for not raising this defense.

      Our Supreme Court has articulated a “strong preference that counsel be

heard before being found ineffective”:

         In recent years, this Court has expressed a distinct preference
      for a hearing on counsel’s strategy before venturing to hold that
      counsel lacked a reasonable basis for his or her actions or
      inactions. See, e.g., Commonwealth v. Hughes, [] 865 A.2d
      761, 799 (Pa. 2004) (although there did not appear to be a reason
      for counsel’s failure to pursue claim of arguable merit, since there
      had been no hearing, “we cannot discern whether a reasonable
      basis existed for counsel’s omission. In such circumstance, this
      Court has declined to divine, in the first instance on appellate
      review, whether counsel’s actions were reasonably based”)[.]

                                 *       *    *

         The deference to trial counsel that is required under
      Strickland and Pierce is a deference that arises from an


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      appreciation of the art involved in the practice of law generally,
      and in the defense function particularly.

Commonwealth v. Colavita, 993 A.2d 874, 895-96 (Pa. 2010) (some

citations omitted).

      Our Supreme Court has further explained that even when “an appellate

court, reviewing a cold trial record, cannot prognosticate a reasonable basis

for a particular” course of trial strategy, it “does not necessarily prove that an

objectively reasonable basis was lacking.”     Id. at 896.    We simply cannot

“employ a hindsight analysis in comparing trial counsel’s actions with other

efforts he may have taken.” Commonwealth v. Barnett, 121 A.3d 534, 540

(Pa. Super. 2015).

      Instantly, the PCRA court dismissed Appellant’s PCRA petition without a

hearing. Thus, were we to determine that trial counsel was ineffective we

would be doing so without affording him the opportunity to be heard. See

Colavita, 993 A.2d at 895-96.        Accordingly, we conclude that the most

prudent course of action is to vacate the order dismissing Appellant’s PCRA

petition and remand this case to the PCRA court to conduct a hearing on

whether trial counsel possessed a reasonable basis for not raising the defense

for fleeing or attempting to elude a police officer set forth Section 3733(c)(1).

      Order vacated. Case remanded. Jurisdiction relinquished.

      Judge Dubow joins the Opinion.

      Judge Bowes files a Concurring/Dissenting Opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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