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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                    1   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

SAHEED 0. SAUNDERS

                            Appellant                   No. 308 EDA 2016


                 Appeal from the PCRA Order December 21, 2015
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0009795-2008

BEFORE:      PANELLA, J., SOLANO, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                               FILED APRIL 06, 2017

         Appellant, Saheed 0. Saunders, appeals pro se from the order entered

in    the Court of Common Pleas of Philadelphia County, denying his petition

filed pursuant to the Post Conviciton Relief Act ("PCRA"), 42 Pa.C.S.A. §§

9541-9546. We vacate and remand for an evidentiary hearing.

         We assume the parties' familiarity with the facts underlying Saunders's

convictions. We direct the interested reader to the trial court's opinion. See

Trial    Court Opinion,     10/1/13, at 2-4. After this Court affirmed       his

convictions, see Commonwealth v. Saunders, No. 2208 EDA 2013 (Pa.

Super., filed July 7, 2014) (unpublished memorandum) (affirming based on



*    Former Justice specially assigned to the Superior Court.
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the trial court's opinion), Saunders filed    a   timely pro se    PCRA   petition. The

petition alleged, among other claims, the ineffective assistance of trial

counsel.

        The PCRA court appointed counsel who subsequently filed           a   "no -merit"

letter and petition to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). The PCRA court issued Rule 907 notice. Saunders

filed two responses, but the PCRA court granted counsel's petition to

withdraw and dismissed the PCRA petition without              a   hearing. This timely

appeal followed.'

        "On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court's findings are

supported by the record and without legal error." Commonwealth v.

Edmiston, 65 A.3d 339, 345       (Pa. 2013) (citation omitted).

        In his pro se PCRA petition, Saunders alleged trial counsel's ineffective

assistance in failing to call an alibi witness, Sherry Lockett. As described

below, Saunders is entitled to   a   hearing on this claim.


' Saunders's appeal    had to be filed by January 20, 2016. See Pa.R.A.P.
903(a). Saunders is incarcerated, at SCI Greene, the Commonwealth's only
supermax prison, and filed his appeal pro se. His notice of appeal is dated
January 16, 2016, and the postmark on the envelope attached to the notice
of appeal is dated January 19. "Pursuant to the prisoner mailbox rule, we
deem a document filed on the day it is placed in the hands of prison
authorities for mailing." Commonwealth v. Patterson, 931 A.2d 710, 714
(Pa. Super. 2007). This appeal is timely.



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           To be entitled to relief under the PCRA, the petitioner must plead and

prove by       a   preponderance of the evidence that the conviction or sentence

arose from one or more of the errors enumerated in                   §   9543(a)(2) of the

PCRA. One such           error involves the ineffective assistance of counsel. The law

presumes counsel's effectiveness; it is the petitioner's burden to prove the

contrary. See Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super.

2002).

           To obtain relief under the PCRA premised on a claim that counsel was

ineffective,       a   petitioner must establish by     a   preponderance of the evidence

that counsel's ineffectiveness           so undermined the      truth -determining process

that no reliable adjudication of guilt or innocence could have taken place.

See 42 Pa.C.S.A.           §   9543(a)(2)(ii). This requires the petitioner to plead and

prove that: (1) the underlying claim           is   of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission. See                     Commonwealth v.
Stewart,       84 A.3d 701, 706 (Pa. Super. 2013) (en banc). Failure to prove

any one of these three elements causes the claim to fail. See id.

           "Where a[n appellant] claims that counsel was ineffective for failing to

call   a    particular witness, we require proof of that witness's availability to

testify, as well an adequate assertion that the substance of the purported

testimony would make                a   difference in the case." Commonwealth v.

Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted; brackets                 in



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original). See also 42 Pa.C.S.A.         §   9545(d)(1). A PCRA petitioner must

demonstrate the following:

        (1) the witness existed; (2) the witness was available; (3) trial
        counsel was informed of the existence of the witness or should
        have known of the witness's existence; (4) the witness was
        prepared to cooperate and would have testified on appellant's
        behalf; and (5) the absence of the testimony prejudiced
        appellant.

Commonwealth v. Hall, 867 A.2d 619, 629                 (Pa. Super. 2005) (citation

omitted).

        Saunders provided   a   signed certification as required by    §   9545(d)(1).2

Specifically, he alleged that Lockett "would and could have testified" to his

"whereabouts" and would have placed him away from the commission of the

crime. PCRA Petition, filed 2/23/15, at 6      §   12, 8. Simply put, she would have

provided him with an alibi.

        Saunders's PCRA counsel construed this as        a   claim that was precluded

by what transpired at trial. There, trial counsel, David Rudenstein, Esquire,


2 The Commonwealth claims that "defendant made no offer to prove his
claim, whether by affidavit or otherwise," nor did he "offer a certification
from himself, counsel, or Sherry Lockett." Commonwealth's Brief, at 9.
Saunders was not required to file an affidavit. "Where a petitioner requests
an evidentiary hearing, the petition shall include a signed certification as to
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." 42 Pa.C.S.A. § 9545(d)(1) (emphasis added). See
also Commonwealth v. Brown, 767 A.2d 576, 583 (Pa. Super. 2001)
(stating § 9545(d)(1) requires "signed certification" from a potential witness,
not an affidavit). Saunders provided a signed certification in his PCRA
petition, complying with § 9545(d)(1). See PCRA Petition, filed 2/23/15, at 6
§   12, 8.


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stated that for "strategic reasons" he was not going to present Lockett as                   a


witness because she "has not been all that cooperative...." N.T., Trial,

3/7/13, at 162-163. The trial court inquired of Saunders, "[d]id you listen to

your lawyer talking and [do] you agree with what he said, sir?" Id., at 163.

And Saunders responded,           "[y]es." Id. The trial court asked Saunders
further, "[s]o you don't believe that there         is   any necessity at this time to call

any witnesses?"     Id.   And Saunders responded,          "[n]o." Id.
        Relying on the legal precept that "a defendant who makes                 a   knowing,

voluntary, and intelligent decision concerning trial strategy will not later be

heard to complain that trial counsel was ineffective on the basis of that

decision," Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)

(citation    omitted),     PCRA   counsel     reasoned        that Saunders's        colloquy

foreclosed     relief,    see   Letter   of      No -Merit,    filed     10/29/15,    at   5-7

(unnumbered). The PCRA court agreed with this reasoning to deny Saunders

relief on this claim, see PCRA Court Opinion, filed 4/6/16, at 7-8, as does

the Commonwealth on appeal, see Commonwealth's Brief, at 7-8.

        Saunders's claim in his PCRA petition is that Lockett "would and could

have testified" to his "whereabouts" and would have placed him away from

the commission of the crime, but that his trial counsel represented to him

that she was not cooperative. Saunders relied on that representation                        in

agreeing with his counsel's strategy at trial. As he succinctly phrases it in his

brief, "[A]ppellant only made this decision [to agree with counsel's strategy]


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based upon trial counsel's assertion that she was uncooperative and not

going to testify." Appellant's Brief, at 3. This is        a   different claim than that

identified by PCRA counsel, the PCRA court, and the Commonwealth.

        Saunders's     is a bold   claim. He alleges that trial counsel dissembled at

trial about Lockett's willingness to testify. It        is a   claim that he bears the

burden to prove. And its resolution requires        a   credibility determination to be

made by the PCRA court, at an evidentiary hearing, between trial counsel

and Lockett. See         Commonwealth v. Johnson, 966 A.2d 523, 540                 (Pa.

2009) ("This Court has made clear that, in cases where the PCRA court

declined to hold     a   hearing, and where an assessment of witness testimony

was essential to     a   petitioner's ineffectiveness claims, the PCRA court must

make specific credibility determinations.")

        Accordingly,     we   remand      for an   evidentiary hearing.      Upon   the

conclusion of the hearing, if the PCRA court finds Lockett credible, it shall

further address the claim of trial counsel's ineffective assistance. If it finds

trial counsel credible, it shall deny the claim.

        The   question     remains whether the          PCRA     court should   appoint

Saunders counsel on remand. "[C]laims of PCRA counsel's ineffectiveness

may not be raised for the first time on appeal." Commonwealth v. Henkel,

90 A.3d 16, 20 (Pa. Super. 2014) (en banc). To preserve the issue of PCRA

counsel's ineffective assistance for appellate review, the claim must first be

raised in the PCRA court in response to the Rule 907 notice and then on


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appeal. See, e.g., Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa.

2009).

         Saunders alleged the ineffective assistance of PCRA counsel in his

"Objections to Finley Letter," filed on November 20, 2015, which was within

the 20 -day timeframe provided by the Rule 907 notice. Furthermore,

although inartfully drafted, Saunders explicitly raises the claim of PCRA

counsel's ineffective assistance in the argument section of both his first and

second issues presented on appeal. See Appellant's Brief, at 3, 5. And he

requests the appointment of new counsel in his "wherefore clause." See id.,

at 7.

        We find Saunders preserved the issue of PCRA counsel's ineffective

assistance for our review in this appeal. By misinterpreting the claim raised

in    Saunders's pro se PCRA petition, PCRA counsel rendered ineffective

assistance. Accordingly, on remand, the court is to appoint Saunders new

counsel.

         In his final issue on appeal, Saunders claims the PCRA court erred in

refusing to grant him permission to file an amended PCRA petition. Rule

905(A) gives the PCRA court discretion to "grant leave to amend            ... a   petition

for     post -conviction   collateral   relief   at   any   time,"   and   states     that

"[a]mendment shall be freely allowed to achieve substantial justice."

Pa.R.Crinn.P. 905(A).




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        Saunders set forth his reason for requesting leave to file an amended

petition in his "Objections to Finley Letter," filed on November 20, 2015,

and "Reply to PCRA Counsel's Response," filed on December 18, 2015. The

former, as mentioned, he filed within the timeline of the Rule 907 notice,

while the latter he filed well outside the 20 -day time limit. In both, he

explained his desire to file an amended petition to claim that trial counsel

failed to investigate and present alibi witnesses. The PCRA court refused the

filing of an amended petition because the identified claim "was [already] set

forth   in his   original petition, and was fully addressed by PCRA counsel in his

Finley letter."       PCRA Court Opinion, filed   4/6/16, at   5.

        The record supports the PCRA court's finding-Saunders simply sought

to advance        a   claim already included in his original petition. Permitting

amendment in such           a   circumstance would be futile. But we have afforded

Saunders the right to new counsel. And Saunders has identified additional

claims in his brief. See Appellant's Brief, at 5-6. Upon review, new counsel

may file an amended petition, if it is deemed necessary. If counsel files an

amended petition, it is left to the PCRA court's discretion to determine

whether any of the new claims merit consideration at the evidentiary

hearing.

        Order vacated. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.




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Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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