J-A18004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 O’NEAL JAMEL OLIVE                        :
                                           :
                    Appellant              :   No. 806 WDA 2019

             Appeal from the PCRA Order Entered May 7, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0009029-2014


BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 27, 2020

      Appellant, O’Neal Jamel Olive, appeals from the post-conviction court’s

May 7, 2019 order that denied his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.          Appellant raises

claims of ineffective assistance of trial counsel, and he also contends that the

court erred in denying his petition based on his allegedly inadequate witness

certifications. After careful review, we vacate the order and remand for an

evidentiary hearing.

      This Court briefly summarized the facts and procedural history of

Appellant’s case in our disposition of his direct appeal, as follows:

      On May 11, 2014, Appellant fired approximately 11 shots at
      Jahtae Boyce (“Boyce”) and Deandre Carter (“Carter”) as they
      were standing in front of Carter’s residence. Neither Boyce nor
      Carter was hit by the gunfire. Three shots, however, entered Mary
      Johnston’s (“Johnston’s”) residence, which was located next to
      Carter’s residence. Johnston and her husband were in the
      residence when one of those bullets struck Johnston in the face.
J-A18004-20


      As a result of that gunshot wound, Johnston suffered brain
      damage.

                                      ***

             On August 12, 2014, the Commonwealth charged Appellant
      via criminal information with four counts of recklessly endangering
      another person, three counts of attempted murder, three counts
      of aggravated assault, two counts of discharging a firearm into an
      occupied structure, and carrying a firearm without a license. At
      the conclusion of the Commonwealth’s case-in-chief, the trial
      court granted Appellant’s motion for judgment of acquittal on the
      carrying a firearm without a license charge. On December 18,
      2014, Appellant was convicted of the remaining 12 offenses.

           On March 10, 2015, the trial court sentenced Appellant to
      an aggregate term of 35 to 70 years’ incarceration.

Commonwealth v. Olive, 609 WDA 2015, unpublished memorandum at *1-

2 (Pa. Super. filed Aug. 21, 2017).

      Appellant appealed from his judgment of sentence, and this Court

affirmed his convictions, but vacated an illegal aspect of his sentence and

remanded for resentencing. See id. at 7. On January 18, 2018, Appellant

was resentenced to an aggregate term of 22 to 44 years’ imprisonment. He

did not appeal from that sentence.

      Instead, on February 13, 2019, Appellant filed the timely, counseled

PCRA petition underlying his present appeal.     Therein, he presented three

claims of trial counsel’s ineffectiveness. Notably, he presented three witness

certifications: one for his trial counsel, and two for police officers who had

testified at his trial. On March 6, 2019, the Commonwealth filed a response,

contending, inter alia, that the three witness certifications attached to

Appellant’s petition were inadequate and his petition should be denied without

                                      -2-
J-A18004-20



a hearing. On March 13, 2019, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition without a hearing, citing only

that his “[p]etition [was] defective in failing to file proper certifications.”

Pa.R.Crim.P. 907 Notice, 3/13/19, at 1 (single page).

      On March 29, 2019, Appellant filed a timely response to the court’s Rule

907 notice, supplementing the purported inadequacies in his witness

certifications. For instance, Appellant explained the futile efforts he had taken

to procure the signatures of his proposed witnesses. See Response to Rule

907 Notice, 3/29/19, at 3-4. He also attached a more detailed certification

for his trial counsel, and included a police report to supplement the

certification for one of the police officers he intended to call at the hearing.

Notwithstanding Appellant’s efforts, on May 7, 2019, the PCRA court issued

an order dismissing his petition without a hearing. Again, the court premised

its decision solely on the inadequacy of Appellant’s witness certifications.

      Appellant filed a timely notice of appeal, and he timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.      The PCRA court thereafter filed a Rule 1925(a)

opinion. Therein, the court explained why it dismissed Appellant’s petition

without a hearing, stating:

             After  reviewing   [Appellant’s]  PCRA    petition,  the
      Commonwealth’s response thereto, and [Appellant’s] response to
      this [c]ourt’s notice of intention to dismiss, this [c]ourt
      determined that [Appellant’s] PCRA petition did not raise any
      claims which were cognizable under the PCRA. Moreover, this
      [c]ourt noted that [Appellant’s] PCRA petition was procedurally
      deficient, as [Appellant] did not provide the requisite witness

                                       -3-
J-A18004-20


        certifications. See 42 Pa.C.S. § 9545(d); Pa.R.Crim.P. 902
        (relating to witness certification requirements).

PCRA Court Opinion (PCO), 9/13/19, at 6-7 (unnumbered).

        Alternatively, the court concluded that Appellant’s petition should be

dismissed on the merits, reasoning that Appellant set forth only “general

assertions that he was, ‘deprived [the benefit] of a fair trial,’ and that there

‘is...a fair probability that the trial’s outcome would have been different,’ but

for trial counsel’s ineffectiveness. These vague assertions are far less than a

petitioner seeking post-conviction relief for ineffective assistance of counsel

must prove.” Id. at 8-9 (citation omitted). Without further discussion, the

court concluded that it had properly dismissed Appellant’s petition. See id.

at 9.

        Now, on appeal, Appellant states the following issues for our review,

which we have reordered for ease of disposition:

        1. Did the PCRA court err in dismissing [Appellant’s] petition based
        on a supposed procedural defect when [Appellant’s] witness
        certifications  substantially    complied    with     the     PCRA’s
        requirements?

        2. The defense theory presented to the jury in the opening
        statement was that this was a one-eyewitness case, and that one
        eyewitness shouldn’t be believed. In the middle of trial, the
        Commonwealth presented the testimony of a surprise second
        eyewitness. [Appellant] suffered prejudiced as a result of his trial
        counsel’s failure to request a mistrial once he learned of the
        surprise eyewitness.      Did the PCRA court err in dismissing
        [Appellant’s] petition without a hearing?

        3. Did the PCRA court err in dismissing [Appellant’s] petition
        without a hearing when [Appellant] was prejudiced by his trial
        counsel’s failure to effectively confront the K-9 tracking evidence?



                                       -4-
J-A18004-20


      4. Did the PCRA court err in dismissing [Appellant’s] petition
      without a hearing when [Appellant] was prejudiced by his trial
      counsel’s failure to request the standard jury instruction
      addressing the significance of the eyewitness[’s] prior inconsistent
      statements?

Appellant’s Brief at 2-3 (footnoted citations to the record omitted).

      Initially, we note that, “[t]his Court’s standard of review from the grant

or denial of post-conviction relief is limited to examining whether the lower

court’s determination is supported by the evidence of record and whether it is

free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

1995)).

      Moreover, “[t]here is no absolute right to an evidentiary hearing
      on a PCRA petition, and if the PCRA court can determine from the
      record that no genuine issues of material fact exist, then a hearing
      is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
      (Pa. Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008) (citing
      Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003));
      Pa.R.Crim.P. 907(2). A reviewing court must examine the issues
      raised in the PCRA petition in light of the record in order to
      determine whether the PCRA court erred in concluding that there
      were no genuine issues of material fact and in denying relief
      without an evidentiary hearing. Commonwealth v. Jordan, 772
      A.2d 1011, 1014 (Pa. Super. 2001) (citation omitted).

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

      Here, we first address Appellant’s argument that the PCRA court erred

by dismissing his petition without a hearing based solely on his purportedly

inadequate witness certifications.       The required contents of witness

certifications are set forth in section 9545(d) of the PCRA, as follows:

      (d) Evidentiary hearing.--

          (1) The following apply:

                                     -5-
J-A18004-20


         (i) Where a petitioner requests an evidentiary hearing, the
         petition shall include a certification signed by each intended
         witness stating the witness’s name, address, date of birth
         and substance of testimony and shall include any documents
         material to that witness’s testimony.

         (ii) If a petitioner is unable to obtain the signature of a
         witness under subparagraph (i), the petitioner shall include
         a certification, signed by the petitioner or counsel, stating
         the witness’s name, address, date of birth and substance of
         testimony. In lieu of including the witness’s name and
         address in the certification under this subparagraph, counsel
         may provide the witness’s name and address directly to the
         Commonwealth. The certification under this subparagraph
         shall include any documents material to the witness’s
         testimony and specify the basis of the petitioner’s
         information regarding the witness and the petitioner’s
         efforts to obtain the witness’s signature. Nothing in this
         subparagraph shall be construed to contravene any
         applicable attorney-client privilege between the petitioner
         and postconviction counsel.

         (iii) Failure to substantially comply with the requirements of
         this paragraph shall render the proposed witness’s
         testimony inadmissible.

42 Pa.C.S. § 9545(d).

      In the case sub judice, Appellant argues that his witness certifications

substantially complied with the PCRA’s requirements, which is all that is

necessary to obtain a hearing. See 42 Pa.C.S. § 9545(d)(1)(iii) (directing

that the petitioner must “substantially comply”); Pa.R.Crim.P. 902(A)(15) (“A

petition for post-conviction collateral relief shall bear the caption, number, and

court term of the case or cases in which relief is requested and shall contain

substantially the following information: (15) if applicable, any request for an

evidentiary hearing. The request for an evidentiary hearing shall include a

signed certification as to each intended witness, stating the witness’s name,


                                      -6-
J-A18004-20



address, and date of birth, and the substance of the witness’s testimony. Any

documents material to the witness’s testimony shall also be included in the

petition[.]”) (emphasis added).     Appellant explains the actions he took to

obtain the signatures of the two police officers he intends to call as witnesses,

and he insists that his certifications contain as much detail as possible, given

the officers’ refusal to speak to his PCRA counsel. See Appellant’s Brief at 40-

42.   Appellant also points out that the officers were the Commonwealth’s

witnesses at trial. Id. at 42. Thus, the Commonwealth was on notice of their

identities and locations, as well as the basic content of their testimony.

      Appellant further explains that his trial counsel also failed to respond to

his current counsel’s request for a signature on the witness certification. Id.

at 43. Appellant then reiterates the anticipated content of his trial counsel’s

testimony, which he set forth in his response to the court’s Rule 907 notice.

Id. at 43-44. Accordingly, Appellant argues that he substantially complied

with the witness-certification requirements of section 9545(d)(1) and, as

such, the PCRA court erred by dismissing his petition without a hearing.

Notably, the Commonwealth conceded, at oral argument in this case, that an

evidentiary hearing is warranted.

      We agree with the parties. At no point in its Rule 907 notice, the order

dismissing Appellant’s petition, or in its Rule 1925(a) opinion did the PCRA

court provide any explanation for why it concluded that Appellant’s witness

certifications failed to substantially comply with the PCRA’s requirements. Our

review of the record demonstrates that the court’s unsupported decision was

                                      -7-
J-A18004-20



erroneous. Appellant’s original witness certifications, and his supplemented

certifications filed in response to the court’s Rule 907 notice, adequately

conveys the identities of the witnesses he intends to call, his efforts to obtain

their signatures on the certifications, and the basic substance of their

proposed testimony.    This information, read in conjunction with the claims

asserted in Appellant’s petition, sufficiently notifies the Commonwealth of the

testimony Appellant plans to elicit from his witnesses at an evidentiary

hearing.    Consequently, Appellant substantially complied with section

9545(d), and the PCRA court erred by dismissing his petition on the basis that

his witness certifications were inadequate.

      Additionally, we reject the PCRA court’s alternative conclusion that

Appellant’s petition was properly dismissed because he provided only ‘general’

and ‘vague’ ineffectiveness claims in his petition. See PCO at 8-9. To the

contrary, Appellant filed a 23-page petition that provides detailed arguments

on the three ineffectiveness claims he sets forth herein. Thus, the record does

not support the court’s determination that Appellant’s ineffectiveness claims

are not adequately developed.

      For these reasons, we conclude that the PCRA court erred by dismissing

Appellant’s petition. Consequently, we vacate the court’s May 7, 2019 order

and remand for an evidentiary hearing.

      Order vacated. Case remanded for further proceedings.          Jurisdiction

relinquished.




                                      -8-
J-A18004-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2020




                          -9-
