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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                 Appellee                :
                                         :
                   v.                    :
                                         :
STEVEN ESTREMERA,                        :
                                         :
                 Appellant               :    No. 3040 EDA 2015

                Appeal from the PCRA Order August 26, 2015
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0012681-2010

BEFORE:    SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED OCTOBER 20, 2016

     Steven Estremera (Appellant) appeals from the August 26, 2015 order

that dismissed without a hearing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.      We vacate the

order and remand for further proceedings consistent with this memorandum.

     Appellant entered negotiated guilty pleas to third-degree murder and

other crimes related to the stabbing death of his mother-in-law. Appellant

was sentenced, in accordance with the terms of the plea agreement, to an

aggregate term of 25 to 50 years of imprisonment.        He filed no post-

sentence motion or direct appeal.

     Appellant timely filed a PCRA petition on May 30, 2012. On December

16, 2013, appointed counsel filed a motion to withdraw and a no-merit letter

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en


*Retired Senior Judge assigned to the Superior Court.
J-S60039-16


banc).   The PCRA court issued a notice of intent to dismiss Appellant’s

petition without a hearing pursuant to Pa.R.Crim.P. 907, then dismissed

Appellant’s petition by order of March 28, 2014. Appellant appealed, raising

claims of ineffective assistance of counsel. This Court determined that most

of his claims lacked merit; however, we remanded for the appointment of

new PCRA counsel to consider the claim that Appellant’s plea counsel was

ineffective in failing to move to suppress his confession, rendering his guilty

plea involuntary.

      The PCRA court appointed new counsel who ultimately filed a no-merit

brief pursuant to Finley.   The PCRA court again issued notice of intent to

dismiss the PCRA petition without a hearing. On August 26, 2015, the PCRA

court filed orders allowing counsel to withdraw and dismissing Appellant’s

petition. Appellant timely filed a notice of appeal. The PCRA court did not

order Appellant to file a concise statement of errors complained of on

appeal, and none was filed. The PCRA court did file an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant contends that the PCRA court erred in allowing counsel to

withdraw and dismissing his petition without a hearing. Appellant’s Brief at

4. The PCRA court agrees with Appellant and asks this Court to remand the

case “for evidentiary proceedings to determine the legality of [Appellant’s]

detention and confession as well as trial counsel’s alleged [in]effectiveness.”




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PCRA Court Opinion, 11/16/2015, at 4-5.       The Commonwealth, however,

argues that the PCRA court’s initial determination that the claim lacked merit

was correct and asks this Court to affirm the order dismissing Appellant’s

petition. Commonwealth’s Brief at 10-11.

      “The standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and

whether that decision is free of legal error.” Commonwealth v. Walters,

135 A.3d 589, 591 (Pa. Super. 2016) (quoting Commonwealth v. Allen,

48 A.3d 1283, 1285 (Pa. Super. 2012)).

      To succeed on a claim of ineffective assistance of counsel, a PCRA

petitioner must plead and prove: “(1) that the underlying claim has arguable

merit; (2) that no reasonable basis existed for counsel’s actions or failure to

act; and (3) that the petitioner suffered prejudice as a result of counsel’s

error.”   Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)

(citation omitted).   “Counsel is presumed to be effective; accordingly, to

succeed on a claim of ineffectiveness the petitioner must advance sufficient

evidence to overcome this presumption.” Id. (citation omitted).

            Allegations of ineffectiveness in connection with the entry
      of a guilty plea will serve as a basis for relief only if the
      ineffectiveness caused the defendant to enter an involuntary or
      unknowing plea. Where the defendant enters his plea on the
      advice of counsel, the voluntariness of the plea depends on
      whether counsel’s advice was within the range of competence
      demanded of attorneys in criminal cases.




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Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012)).

      Here, Appellant claims that

      both prior to his October 12, 2010 preliminary hearing and May
      26, 2011 guilty plea, Appellant informed his trial counsel that at
      the time it was alleged he provided a ‘confession’ to police, he
      had been held in custody for a period of roughly 29 hours, was
      not advised of his rights as required by Miranda v. Arizona,
      384 U.S. 436 (1966), and was under the influence of drugs.

             Despite having been made aware of these facts, trial
      counsel never advised Appellant of the option of filing and/or
      otherwise litigating a motion to suppress. Instead, trial counsel
      advised Appellant to plead guilty.      For purpose of clarity,
      Appellant’s basic contention … is that his guilty plea should be
      invalidated because it was primarily induced or motivated by the
      existence of incriminating evidence obtained by police through
      means which violated Appellant’s constitution[al] rights.

Appellant’s Brief at 16.

      Although the PCRA court initially held that Appellant’s claim lacked

merit, and thus allowed his counsel to withdraw and dismissed the PCRA

petition without a hearing, it now opines that a hearing is warranted:

             In the instant case, [Appellant] was taken to police
      headquarters and questioned. Initially, he was not under arrest.
      He was considered a witness to events that led up to his mother-
      in-law’s murder.    [Appellant] told the police that someone
      named Macho had killed the victim. Over the course of the next
      twenty-nine (29) hours, police attempted to verify [Appellant’s]
      version of events. They located and spoke with Macho as well
      as Macho’s wife and mother. All the while, [Appellant] remained
      at police headquarters.

           Notwithstanding Detective Scally’s claim that [Appellant]
      was not under arrest because he hadn’t been handcuffed or



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     confined to an interview room, it is apparent that [Appellant’s]
     “visit” to police headquarters ultimately ripened into a custodial
     detention during this time. It is equally clear that [Appellant]
     was initially interviewed as a material witness to a crime. Only
     after the police were able to disprove [Appellant’s] initial version
     of events did he become a prime suspect. At that point, the
     police gave petitioner his Miranda warnings, and petitioner gave
     a full confession. Although the Commonwealth asserts that
     [Appellant] “voluntarily” confessed, the fact remains that he was
     detained for a significant period of time absent probable cause
     prior to confessing.

                                    ***

            Although Detective Scally briefly testified at [Appellant’s]
     preliminary hearing that [Appellant] was not handcuffed during
     his detention and that [Appellant] was Mirandized before giving
     his statement, there is scant information regarding intervening
     circumstances, the conditions of [Appellant’s] detention and
     whether the police engaged in misconduct or coercive tactics to
     secure a confession. Based upon the record before it, this court
     simply cannot determine whether a suppression motion would
     have been meritorious had [Appellant] or trial counsel raised it.
     Moreover, this court does not know whether trial counsel
     discussed the suppression issue with [Appellant]. Nor can it
     determine whether the waiver of this issue played a role in the
     Commonwealth’s decision to nolle prosse the first degree murder
     bill and, instead, offer [Appellant] a plea to third degree murder.

           Ultimately, therefore, the state of the existing record does
     not enable this court to determine whether [Appellant’s] decision
     to forego a suppression hearing and a trial was knowingly made.

PCRA Court Opinion, 11/16/2015, at 7-9 (citations omitted).

     The Commonwealth disagrees with Appellant and the PCRA court,

maintaining that Appellant’s petition properly was dismissed without a

hearing. It contends that Appellant’s claim must fail because (1) Appellant

indicated in his written plea colloquy that he understood that, by pleading



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guilty, he was giving up the right to file pre-trial motions, Commonwealth’s

Brief at 16; and (2) that there is no merit to the underlying suppression

claim because, inter alia, Appellant’s signed statement indicates that he was

not under the influence of drugs and the length of his detention “was a direct

result of his untruthfulness and so is not a ground for suppression.” Id. at

19.

      We   are   not   persuaded   that       the   Commonwealth’s   arguments

necessarily prevail at this juncture.    The fact that Appellant acknowledged

that he was waiving his right to file a suppression motion by pleading guilty

does not imply that trial counsel discussed with Appellant the merits of a

motion to suppress his statements under the circumstances of Appellant’s

detention. The issue cannot be resolved until the PCRA court makes factual

findings, following an evidentiary hearing, about what advice counsel did or

did not give to Appellant.   Similarly, whether the underlying suppression

issue has merit depends on the PCRA factual determinations about the

circumstances of Appellant’s detention.

      Accordingly, we agree with the PCRA court’s conclusion that there are

unresolved issues of material fact requiring an evidentiary hearing.      See

Pa.R.Crim.P. 908 (providing that the judge shall order a hearing when

material issues of fact are raised).      Further, Appellant is entitled to be

represented by counsel at the hearing. See Pa.R.Crim.P. 904(C) (requiring




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the appointment of counsel for an indigent petitioner on his or her first PCRA

petition); Commonwealth v. Brown, 836 A.2d 997, 998 (Pa. Super. 2003)

(noting that the right to representation “exists throughout the post-

conviction proceedings”); Pa.R.Crim.P. 904(D) (mandating appointment of

counsel to represent a criminal defendant when an evidentiary hearing is

required).

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/20/2016




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