J-A06035-20

                                   2020 PA Super 99

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    STEVEN MILLER                              :   No. 3558 EDA 2018

               Appeal from the Order Entered December 7, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011245-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN MILLER                              :
                                               :
                       Appellant               :   No. 74 EDA 2019

               Appeal from the Order Entered December 7, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011245-2012


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                              FILED APRIL 17, 2020

        The Commonwealth of Pennsylvania appeals the order of the Court of

Common Pleas of Philadelphia County which granted Appellee Steven Miller’s

petition pursuant to the Post-Conviction Relief Act (PCRA)1 and awarded

Appellee a new trial. Appellee filed a cross-appeal, arguing that the PCRA


____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
J-A06035-20



court erred in denying four of the remaining claims in his petition. We vacate

the PCRA court’s order and remand for further proceedings.

     The trial court summarized the evidence presented at trial as follows:

            On the afternoon of June 10, 2013, [Appellee] arrived at the
     home of Randy Coleman at roughly 1:30 p.m. for a cookout.
     During the festivities, [Appellee] saw Aleeya McFadden, a friend
     of roughly two years. Ms. McFadden arrived at the cookout with
     Shana Sherman. [Appellee] and Ms. Sherman had not met each
     other prior to that night. Around 10:00 p.m., the three individuals
     left the cookout and agreed to meet at PYT, a restaurant and bar
     located in the Piazza in the Northern Liberties section of the city;
     [Appellee] drove himself to the bar, and the two ladies drove to
     PYT in their own vehicle. En route to PYT, [Appellee] saw a friend
     from school, Twan (full name not given), walking; after [Appellee]
     told Twan of his intent to go to PYT, Twan joined [Appellee] and
     drove his vehicle because [Appellee] was feeling the effects of the
     alcoholic beverages he had consumed at the Coleman residence.
     At PYT, the four sat together at a table and ordered some food
     and a round of drinks.

           PYT provides mostly outdoor seating, and [Appellee’s] party
     was seated at one of these outdoor tables in close proximity to
     another party of four. This other party included four individuals –
     Maurice Ronnie Kimble [(“the victim”)], Wiair Hand, Jamal
     Chapman and Davi Son, Mr. Chapman’s girlfriend. While seated
     at their table, Ms. Sherman and Ms. McFadden drew the attention
     of several people at PYT based on their attire and because they
     were dancing and taking photographs and posting the photos to
     Instagram, a social media site. One of the photos showed Ms.
     Sherman sitting on [Appellee’s] lap.

            Shortly after arriving, Ms. Sherman proceeded to use the
     bathroom. The bathroom at PYT is unisex, accommodating both
     men and women in one bathroom but offering privacy through
     individual stalls. [The victim] followed Ms. Sherman into the
     bathroom and waited until she exited her stall. At this point, [the
     victim] tried to talk to Ms. Sherman. After she spurned his
     advances, [the victim] tried to impress her with his two-thousand
     dollar shoes, his Gucci watch, and his wealth in general. Ms.
     Sherman tried to walk away, and twice, [the victim] grabbed Ms.
     Sherman’s arm in an effort to get her phone number.

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           When Ms. Sherman arrived back at the table, she was visibly
     upset. When asked what happened in the bathroom, Ms. Sherman
     recounted the incident to the rest of her party. [The victim] was
     already seated at his table with the rest of his party. The incident
     was followed by an exchange of words between [the victim] and
     [Appellee] while each was seated at a separate table. Upon [the
     victim’s] arrival back at his table, [the victim’s] friends had
     already decided to pay their tab and leave for another
     establishment.

            As [the victim’s] party began to leave PYT, [the victim] kept
     directing comments to [Appellee] and his table. [The victim],
     behind the three other members of his party, eventually called
     [Appellee] over to talk with them. According to [Appellee], [the
     victim] wanted to fight [Appellee] and [Appellee] responded by
     lifting up his shirt and exposing a weapon and remarked to [the
     victim] that he could not fight [the victim] because he had a
     weapon on him; at this point, Mr. Hand began to run away from
     [the victim] and [Appellee].

            According to [Appellee], he then turned and began to walk
     back to his table. According to [Appellee], [the victim] asked
     [Appellee] why he was leaving. [Appellee] testified that he heard
     [the victim] say he was not scared of guns; [Appellee] turned and
     saw [the victim] with his shirt raised, exposing a gun; he testified
     that he saw [the victim] reaching for the gun. In response,
     [Appellee] pulled out his gun and fired four shots, two of which hit
     [the victim] and eventually killed him. At that point, [Appellee]
     fled the scene and discarded the gun in a sewer grate.

           Several workers and patrons immediately grabbed towels
     and tried to tend to [the victim’s] wounds. No gun was found on
     or within the immediate vicinity of the [victim]. One member of
     [the victim’s] party – Mr. Wiair Hand – did discard a firearm in a
     dog park some distance away. It was recovered by police.

            Several witnesses testified regarding what they had seen.
     Ellen Clenney was the waitress attending to [Appellee’s] party.
     Ms. Clenney was serving [Appellee’s] party for roughly a half hour
     before the shooting occurred. Ms. Clenney stated that she saw
     the shooting and that the [victim] did not have a gun. Ms. Clenney
     testified that she saw [Appellee] follow [the victim], say
     something to [the victim], and, after words were passed between
     both men, shoot him. Ms. Clenney testified that the shooting
     occurred between a breezeway and that she was roughly four (4)


                                    -3-
J-A06035-20


     feet away at the time. Prior to giving her statement to homicide
     detectives, detectives showed Ms. Cheney [sic] the photos which
     had been published on Instagram. They showed [Appellee] and
     Ms. Sherman together. She recognized [Appellee] as the shooter.

           Each member of [the victim’s] party testified. Davi Son
     stated that when one of the ladies, later identified as Ms.
     Sherman, left to go to the bathroom, [the victim] followed her.
     When Ms. Sherman returned to [Appellee’s] table and [the victim]
     returned to his, Ms. Son described the attitude of [Appellee’s]
     table as agitated with gesturing toward [the victim’s] table. Jamil
     Chapman, Ms. Son[’s] boyfriend at the time, asked [the victim]
     what he had said to Ms. Sherman. [The victim] chuckled, but did
     not describe what happened. Mr. Chapman and Wiair Hand also
     confirmed these events when they testified.

           Ms. Son told Mr. Chapman to pay the bill, because she
     wanted to leave. Ms. Son started to walk to her vehicle, but before
     she reached her car, she turned around to walk back to PYT to see
     why the rest of the party was delayed. As Ms. Son was walking
     back, she heard four or five gunshots and saw [the victim] fall to
     the ground. Prior to the gunshots, Ms. Son saw [the victim] with
     his arms raised above his head in a Y-shape.

           Mr. Hand testified that prior to going to PYT, he, Ms. Son
     and Mr. Chapman were at Mr. Chapman's apartment located in an
     adjoining apartment complex to PYT. When these three knew that
     [the victim] had arrived, they proceeded to meet him at PYT. As
     they were walking downstairs, Mr. Chapman gave Mr. Hand a gun
     to hold for “protection.”

            After the party had ordered their food and drinks, Mr. Hand
     stated that [the victim] followed Ms. Sherman to the bathroom.
     After [the victim] returned, Mr. Hand estimated that the [victim’s]
     party remained at the table for roughly five or ten minutes before
     leaving PYT. When [the victim] returned from the bathroom, Mr.
     Hand stated that members of [Appellee’s] party kept staring at
     them. When the [victim’s] party left, Mr. Hand stated that Ms.
     Son left through the breezeway first, followed by Mr. Chapman,
     Mr. Hand and [the victim], who was walking slowly and arguing
     with [Appellee].      Mr. Hand stated that [the victim] asked
     [Appellee] to step outside. Mr. Hand saw [Appellee] lift up his
     shirt and expose a weapon. Mr. Hand's visceral reaction was to
     run into the lobby of the apartment complex. After Mr. Hand
     heard several shots, he came from the lobby and saw [the victim]


                                    -4-
J-A06035-20


     lying on the ground. Mr. Hand then realized that he was still in
     possession of the weapon that Mr. Chapman had previously given
     him; he ran across the street to hide the gun under some weeds.
     Mr. Hand disclosed that, prior to testifying, he had pled guilty to
     a violation of the Uniform Firearms Act and was expecting a
     sentence of two years of reporting probation.

           During cross-examination, [Appellee] questioned Mr. Hand's
     actions immediately prior to the fight. Although Mr. Hand testified
     the he had been given the gun for protection, [Appellee]
     questioned why the group needed protection. Mr. Hand testified
     that the group was going out later, but denied that the future
     events had anything to do with potential drug deals. [Appellee]
     questioned why Mr. Hand, as the protector of the group, ran when
     he saw the gun exposed. Mr. Hand denied being the “protector.”
     Mr. Hand, standing roughly ten yards away, stated unequivocally
     that [the victim] did not have a gun and never lifted up his shirt.

             Ms. Sherman also testified and recounted the bathroom
     incident. Ms. Sherman stated that after the bathroom incident but
     before the [victim’s] party left, words were being exchanged
     between [the victim] and [Appellee]. When the [victim’s] party
     left, Ms. Sherman saw [Appellee] follow [the victim]; the second
     round of arguments then began. Ms. Sherman was standing near
     the table and looking directly at [the victim] and could only see
     [Appellee’s] back. Ms. Sherman saw [Appellee] lift his shirt and
     shoot [the victim] twice while standing and twice more when [the
     victim] had fallen to the ground. Sherman never saw [the victim]
     lift his shirt or expose a weapon, either during the altercation or
     in the bathroom.

           Mr. Chapman testified that once [Appellee] raised his shirt
     to expose his weapon, Mr. Hand began to run. Mr. Chapman
     stated that when [Appellee] started withdrawing the weapon, [Mr.
     Chapman] also began to flee. Mr. Chapman hid in the stairwell to
     an adjoining apartment complex. Mr. Chapman also testified that
     [the victim] did not have a weapon.

           Brody Smythe was the server who attended to [the victim’s]
     party. Prior to the shooting, Mr. Smythe dropped the bill on their
     table and waited until they paid. When the [victim’s] party paid,
     they got up and walked out. Mr. Smythe then stated that
     [Appellee] got up and ran after them to the breezeway. Mr.
     Smythe saw Ms. McFadden screaming while chasing after
     [Appellee]. Mr. Smythe was roughly ten (10) feet away from the


                                    -5-
J-A06035-20


     location in the breezeway where the shooting occurred and was
     certain that he saw only one gun that night.

           Michael Lasday was a patron at PYT and was seated near
     the breezeway. When Mr. Lasday heard some shouting and two
     shots being fired, he turned and saw [the victim] on the ground.
     Mr. Lasday stated that [Appellee] then fired two more shots with
     his arm extended toward [the victim] in a downward angle. After
     the shooting, Ms. Clenney told Mr. Lasday about the two ladies at
     [Appellee’s] table and that they had taken pictures before the
     shooting. Mr. Lasday found the Instagram photos that were
     posted and informed the officers who responded to the scene. Mr.
     Lasday did not see a gun on or near the decedent and did not see
     anyone run up to the decedent and remove a gun.

            Ms. McFadden testified for the defense. In almost all
     respects, Ms. McFadden testified in a fashion consistent with the
     other witnesses regarding the incidents leading up to the last
     altercation. Notably, Ms. McFadden testified that once the
     altercation occurred in the breezeway, [Appellee] lifted his shirt,
     [the victim] lifted his shirt and exposed what she believed to be a
     gun, and that [Appellee] shot [the victim]. During cross-
     examination, Ms. McFadden was impeached with the fact that she
     had explicitly told detectives, during a formal interview, that [the
     victim] never had a gun.
                                         ***
            [Appellee] also presented John Waters, who testified that he
     was in the living room of his apartment located on the sixth floor
     when he heard gunshots. Thirty-five to forty seconds after
     hearing the shots, Mr. Waters went to the balcony of his
     apartment which looked over the street where the shooting
     occurred. Mr. Waters could see a man wearing a pink shirt
     running away from PYT followed by another person running in a
     different direction toward a dog park located near Germantown
     Avenue and Hancock Street. Mr. Waters testified that the second
     man ran to the dog park, bent over, and “did something in the
     woodchips and soil along the fence line.”

         [Appellee] also presented nine character witnesses. All of
     the witnesses testified that [Appellee’s] character in the
     community for being a peaceful and law-abiding citizen is good.

           [Appellee] also testified. [Appellee] stated that, in May of
     2009, he had just cashed a paycheck at a bank and was later
     standing in front of a sneaker store when a couple of individuals


                                    -6-
J-A06035-20


     approached him and asked him a question. One of the individuals
     lifted up his shirt, pulled out a gun and shot [Appellee] as he tried
     to run away. After seven months of recuperating, [Appellee]
     proceeded to [illegally] buy a .40 caliber Smith & Wesson to
     protect himself because the incident caused him to be “very
     paranoid.”

           [Appellee] also described the events that transpired after
     Ms. Sherman returned from the bathroom. Once Ms. Sherman
     came back from the bathroom, [Appellee] described Ms. Sherman
     as appearing frustrated. [Appellee] testified that his friend, Twan,
     asked Ms. Sherman if anything was wrong.              Ms. Sherman
     described the incident and pointed toward [the victim] as the
     person who had confronted her in the bathroom.

           [Appellee] testified that [the victim] made a comment which
     precipitated an exchange of words. As the [victim’s] party began
     to depart, [the victim] twice called out to [Appellee] to “come
     here.” After the second request by [the victim], [Appellee]
     proceeded to leave his seat and approach [the victim]. When
     [Appellee] reached [the victim], [the victim] told [Appellee] that
     he wanted to fight. [Appellee] lifted up his shirt and told [the
     victim] that he could not fight him because of the gun he had.
     [Appellee] heard Mr. Hand scream and run when he exposed the
     gun to [the victim]. [Appellee] proceeded to turn around to go
     back to his table when he heard [the victim] say, “Yo, where you
     going? I ain't running ... [.][W]e ain't worried about no guns. I'm
     not scared of no guns. We got guns too.”

           According to [Appellee], he then turned, saw [the victim] lift
     his shirt and reach for a gun. [Appellee] stated that he reacted to
     the movements by [the victim] by shooting him. According to
     [Appellee], the first two shots were fired while he was facing [the
     victim] and the second set of shots were fired while [Appellee]
     was running away. [Appellee] stated that he then discarded the
     weapon in a sewer grate and made plans with Greyhound to flee
     the jurisdiction. [Appellee] took a bus to Los Angeles, California
     and, after a week and a half, left for Houston, Texas, where he
     was apprehended by police.

            During cross-examination, [Appellee] was asked about his
     connection to Ms. McFadden. [Appellee] testified that the father
     of Ms. McFadden's child, Quan Harper, was a very good friend of
     his prior to Mr. Harper's murder in 2009. [Appellee] was asked if
     the 2009 shooting where he portrayed himself as a victim of a


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      random crime was actually an act of retaliation on his part against
      the people who had killed his friend. [Appellee] denied that his
      2009 shooting was a crime of retaliation. [Appellee] was asked if
      he knew anything about the Harper Family Gang. [Appellee]
      denied knowing anything about the Harper Family Gang.

Trial Court Opinion (T.C.O.), 10/31/14, at 3-12 (citations and footnote

omitted, paragraph spacing added).

      On October 28, 2013, a jury convicted Appellee of third-degree murder,

possessing an instrument of crime, carrying a firearm without a license, and

carrying a firearm on the public streets of Philadelphia. On January 16, 2014,

the trial court sentenced Appellee to an aggregate term of 23½ to 47 years’

imprisonment. On January 24, 2014, Appellee filed a post-sentence motion,

which was denied by operation of law on May 28, 2014.

      On August 5, 2015, this Court affirmed the judgment of sentence and

on February 1, 2016, our Supreme Court denied Appellee’s petition for

allowance of appeal.   See Commonwealth v. Miller, 494 EAL 2015 (Pa.

February 1, 2016); Commonwealth v. Miller, 1626 EDA 2014 (Pa.Super.

August 5, 2015) (unpublished memorandum).

      On December 20, 2016, Appellee filed a timely PCRA petition.          On

December 22, 2017, Appellee filed an amended petition, raising inter alia, a

claim of “new evidence of actual innocence,” based on a statement allegedly

made by Gary Silver, Esq., the attorney who represented prosecution witness




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J-A06035-20



Wiari Hand against charges for the illegal possession of a firearm on the night

of the murder.     Amended PCRA Petition, 12/22/17, at 13.2

       On May 10, 2018, the PCRA court held a hearing at which Samuel

Stretton, Esq. (“trial counsel”) testified concerning an alleged conversation he

had with Attorney Silver during Appellee’s trial. According to trial counsel,

Attorney Silver indicated that his client, Hand, lied when he testified at

Appellee’s trial that he was in possession of Chapman’s handgun before the

shooting and that the victim was unarmed when he was shot.

       Instead, trial counsel testified that Attorney Silver shared that Hand

actually possessed the victim’s handgun. However, at the PCRA hearing, trial

counsel became confused when initially reporting this statement. Trial counsel

stated that “Mr. Silver told me that his client[, (Wiari Hand),] had misled the

court and that it was his gun. The client, Mr. Hand’s gun. Sorry, it was the

decedent’s gun. Not Mr. Hand’s gun. Sorry.” Notes of Testimony (N.T.),

PCRA Hearing, 5/10/18, at 43-44. Trial counsel indicated that Attorney Silver

shared that Hand had admitted that he moved the handgun from the victim’s

body after Appellee shot the victim and disposed of the firearm in some weeds

to make it look like the victim was unarmed at the time of the shooting.

       Acknowledging that he had become confused on Hand’s alleged

statement to Attorney Silver, trial counsel explained that he has litigated

almost 1,000 cases since Appellee’s trial and he does not remember names
____________________________________________


2The Commonwealth did not challenge the PCRA court’s decision to allow
Appellee to amend his petition.

                                           -9-
J-A06035-20



well. Trial counsel candidly admitted that he would get names “mixed up in

[his] head sometimes” and conceded that there was a possibility that his cases

could “get conflated over the years.” Id. at 16, 44-45.

      At the time of Appellee’s trial, trial counsel believed he was bound by

attorney-client privilege to keep Attorney Silver’s statement confidential, as

trial counsel had served as Attorney Silver’s counsel in an unrelated matter

years before this case.     However, trial counsel revealed Attorney Silver’s

communication to assist Appellee in seeking collateral relief as he now takes

a “different position” on this ethical question. Id. at 43-44, 79-80, 113.

      Appellee presented the testimony of Attorney Silver, who denied telling

trial counsel that Hand picked up the victim’s firearm and disposed of it after

the shooting.    Attorney Silver adamantly claimed he did not make this

statement, indicating “I would remember that.” Id. at 109-10.

      In his PCRA petition, Appellee claimed trial counsel was not bound by

the attorney-client privilege and could have used Attorney Silver’s statement

to show that a witness had committed perjury at Appellee’s murder trial. As

noted above, Appellee characterized his claim in terms of “new evidence” that

could be presented at a new trial and did not claim trial counsel was ineffective

in failing to reveal this testimony.

      Appellee’s PCRA counsel indicated that she had intended to call Wiair

Hand as a witness at the evidentiary hearing but she had difficulty locating

him even after hiring a private investigator. Although PCRA counsel never

found Hand’s address, she noted that she was able to reach him on a phone

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J-A06035-20



number provided by Attorney Silver. Hand told PCRA counsel that he did “not

wish to be involved.” Id. at 4-5.

      On December 7, 2018, the PCRA court judge, the Honorable Steven

Geroff, briefly concluded that Appellee was entitled to a new trial on the basis

of his finding that trial counsel was “ineffective.”     However, Judge Geroff

expressed reluctance to explain his rationale for this ruling.          After the

prosecutor pressed Judge Geroff to put his reasoning on the record as the

Commonwealth wished to appeal, Judge Geroff stated:

           Very good. Then take the appeal. I’m a big boy. I can
      handle it. I don’t mind. Lawyers who appeal, do their job, you
      know.

            I think that the trial counsel was caught in an ethical conflict
      because of his representation years before of the attorney who
      represented Wiair Hand. And the information that the attorney
      relayed to trial counsel during the course of trial concerning his
      opinion that Mr. Hand had lied. And I think trial counsel owed him
      an obligation, an ethical obligation, to [Appellee] in this case, to
      have used that to his advantage. Instead, he chose not to.

N.T., PCRA Hearing, 12/7/18, at 5.

      Thereafter, the prosecutor asked if Judge Geroff was making specific

findings that trial counsel was credible and that Attorney Silver had lied to the

PCRA court. Judge Geroff responded as follows:

      I’m not accusing [Attorney Silver] of lying. I’m not accusing him
      of lying. But my finding is that I chose – that when [trial counsel]
      explained what happened, I believed his testimony. I believe, at
      that point, he had – when all of that had developed at the trial, he
      had an obligation to the client he was representing in a homicide
      case; that was more important than the obligation he had to his
      former client, Mr. Silver.

Id. at 5-6.

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      After finding Appellee was entitled to a new trial due to trial counsel’s

ineffectiveness, Judge Geroff then denied the remaining issues in Appellee’s

petitions, stating that “if all I had to decide were the other issues in the case,

I would have denied the petition.” Id. at 3-4. Judge Geroff did not make any

factual findings or provide any rationale in denying these claims.

      On December 11, 2018, the Commonwealth filed a timely appeal. On

December 22, 2018, Appellee filed a timely cross-appeal.            Both parties

complied with the PCRA court’s direction to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). As Judge Geroff did

not file a responsive 1925(a) opinion due to his subsequent retirement, the

case was reassigned to the Honorable Genece E. Brinkley.

      On February 26, 2019, Judge Brinkley filed an order recusing herself

from this case. On March 5, 2019, the matter was again reassigned to Judge

Brinkley by the supervising judge. On March 29, 2019, Judge Brinkley filed

an order stating that “this Court cannot write an Opinion in support of the

decision of Judge Geroff due to a plethora of ethical issues raised by his

decision, and because it appears that Judge Geroff did not address the merits

of the case based upon relevant case law.” Order, 3/29/19, at 1 (footnote

omitted).

      On appeal, the Commonwealth asks this Court to review “[w]hether the

lower court erred in granting [Appellee] a new trial where he failed to meet

his burden that counsel was ineffective.” Commonwealth’s Brief, at 1. In his

cross-appeal, Appellee raises the following issues for review:

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      I.      Whether [Appellee] was denied effective assistance of
              counsel arising from a failure to investigate and find
              Anthony Bright?

      II.     Whether [Appellee] was denied effective assistance of
              counsel arising from the failure to investigate and find [the
              victim’s] criminal record?

      III.    Whether [Appellee] was denied effective assistance of
              counsel arising from the failure to investigate viewed
              cumulatively?

      IV.     Whether [Appellee] was denied due process when the
              Commonwealth failed to correct the false testimony of Wiair
              Hand?

Appellee’s Brief, at 15-16.

      Our standard of review is well-established:

      [o]ur review of the grant or denial of PCRA relief is limited to
      examining whether the PCRA court's findings of fact are supported
      by the record, and whether its conclusions of law are free from
      legal error. Commonwealth v. Cox, 636 Pa. 603, 146 A.3d 221,
      226 n.9 (2016). The PCRA court's credibility determinations, when
      supported by the record, are binding on this Court; however, we
      apply a de novo standard of review to the PCRA court's legal
      conclusions. Commonwealth v. Burton, 638 Pa. 687, 158 A.3d
      618, 627 n.13 (2017).

Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971 (2018).

      As stated above, the Commonwealth claims the PCRA court erred in

granting Appellee a new trial based on its finding that trial counsel was

ineffective. Our review of this claim is guided by the following principles:

            [a]s originally established by the United States Supreme
            Court in Strickland v. Washington, 466 U.S. 668, [104
            S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by
            Pennsylvania appellate courts, counsel is presumed to have
            provided effective representation unless a PCRA petitioner
            pleads and proves all of the following: (1) the underlying
            legal claim is of arguable merit; (2) counsel's action or
            inaction lacked any objectively reasonable basis designed to

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J-A06035-20


          effectuate his client's interest; and (3) prejudice, to the
          effect that there was a reasonable probability of a different
          outcome at trial if not for counsel's error.

      Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
      (citations omitted). “A failure to satisfy any prong of the
      ineffectiveness test requires rejection of the claim of
      ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963
      A.2d 409, 419 (2009).

Commonwealth v. Selenski, ___A.3d___, 1062 EDA 2019, 2019 WL

544091, at *4 (Pa.Super. Feb. 4, 2020).

      As an initial matter, we point out that in Appellee’s Amended PCRA

petition, Appellee never asserted that trial counsel was ineffective, but instead

characterized his argument as raising “new evidence of actual innocence.”

Amended PCRA Petition, 12/22/17, at 13. Appellee’s failure to include this

specific ineffectiveness challenge in his PCRA petition precluded him from

obtaining relief on that basis.

      Pennsylvania Rule of Criminal Procedure 902, which governs the content

of PCRA petitions, specifically provides that “[e]ach ground relied upon in

support of the relief requested shall be stated in the petition. Failure to state

such a ground in the petition shall preclude the defendant from raising that

ground in any proceeding for post-conviction collateral relief.” Pa.R.Crim.P.

902(b).

      Moreover, it is well-established that a petitioner bears the burden of

proving counsel’s ineffectiveness through the three-part ineffectiveness test.

Commonwealth v. Wholaver, 644 Pa. 386, 401, 177 A.3d 136, 144 (2018)

(quoting Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655, 664


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(2007)). The PCRA expressly requires that a petitioner “plead and prove” by

a preponderance of the evidence each element of his ineffectiveness claim.

42 Pa.C.S.A. § 9543. As noted above, “counsel is presumed to have provided

effective representation unless a PCRA petitioner pleads and proves all three

of the prongs of the ineffectiveness test.” Selenski, supra (emphasis added).

      As Appellee did not even allege that counsel was ineffective in failing to

reveal the information he received from Attorney Silver, the PCRA court erred

by improperly raising this ineffectiveness claim sua sponte on Appellee’s

behalf and concluding that Appellee was entitled to a new trial based on a

specific claim Appellee never raised.

      Even assuming that Appellee had properly sought to plead and prove

this particular allegation of ineffectiveness, the PCRA court did not evaluate

counsel’s representation pursuant to applicable precedential law using the

three-prong ineffectiveness test. Typically, when a PCRA court makes legal

conclusions expressly premised on incomplete factual findings, our courts will

remand for the PCRA court to make necessary credibility determinations,

factual findings, and to assess Strickland prejudice in light of those findings.

Commonwealth v. Johnson, 600 Pa. 329, 359, 966 A.2d 523, 540–41

(2009). We cannot remand for Judge Geroff to make specific fact findings and

credibility determinations and provide further explanation of his ruling on this

issue, as he has since retired from the bench.

      Nevertheless, there is no support in the record for the PCRA court’s

conclusion that trial counsel was ineffective in failing to “use” Attorney Silver’s

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statement to the “advantage” of his client, Appellee, in his murder trial. While

the PCRA court suggested trial counsel was ineffective in failing to call Attorney

Silver to testify at Appellee’s trial, we note the following:

      [t]o satisfy the prejudice prong of this test when raising a claim
      of ineffectiveness for the failure to call a potential witness at trial,
      our Supreme Court has instructed that the PCRA petitioner must
      establish that: (1) the witness existed; (2) the witness was
      available to testify for the defense; (3) counsel knew, or should
      have known, of the existence of the witness; (4) the witness was
      willing to testify for the defense; and (5) the absence of the
      testimony of the witness was so prejudicial as to have denied the
      defendant a fair trial. Commonwealth v. Sneed, 616 Pa. 1, 22–
      23, 45 A.3d 1096, 1108–109 (2012) (citing Commonwealth v.
      Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) and
      Commonwealth v. Clark, 599 Pa. 204, 222, 961 A.2d 80, 90
      (2008)).

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014).

      The record supports an inference that Attorney Silver would not have

been willing to cooperate and testify for the defense as he adamantly and

unequivocally denied that he told trial counsel that his client, Hand, had

committed perjury at Appellee’s trial. Even trial counsel acknowledged that it

was not logical for Attorney Silver to reveal his client’s confidences and noted

Attorney Silver would be subject to discipline for an ethical violation.

      In addition, trial counsel’s report of Attorney Silver’s alleged statement

did not establish an evidentiary basis on which to grant a new trial. While the

PCRA court suggested trial counsel was ineffective in failing to recognize that

he had an ethical obligation to “use” Attorney Silver’s revelation to Appellee’s

“advantage” at Appellee’s murder trial, the PCRA court failed to explain how



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counsel could do so.       Even if Attorney Silver was willing to testify for the

defense, trial counsel could not ask Attorney Silver to testify to Hand’s out-of-

court statement (which would constitute inadmissible hearsay), could not

admit Hand’s prior inconsistent statement to Attorney Silver as substantive

evidence, and would be limited to using the statement to impeach Hand.3

        Moreover, the PCRA court failed to analyze the testimony in light of the

fact that Appellee was required to show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The PCRA court did not address this prong of the ineffectiveness test in light

of the overwhelming evidence of Appellee’s guilt in that multiple witnesses

(even a defense witness) testified that the victim was unarmed when Appellee

shot and killed him.



____________________________________________



3   Our Supreme Court has explained that:

        In an effort to ensure that only those hearsay declarations that
        are demonstrably reliable and trustworthy are considered as
        substantive evidence, we now hold that a prior inconsistent
        statement may be used as substantive evidence only when the
        statement is given under oath at a formal legal proceeding; or
        the statement had been reduced to a writing signed and adopted
        by the witness; or a statement that is a contemporaneous
        verbatim recording of the witness’s statements.

Commonwealth v. Lively, 530 Pa. 464, 471, 610 A.2d 7, 10 (1992).




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       Accordingly, we find the PCRA court’s findings were not supported by

the record and its determination that Appellee met the burden to plead and

prove the aforementioned ineffectiveness claim was legal error.4 As such, we

conclude the PCRA court erred in granting Appellee a new trial.

       Turning to Appellee’s cross-appeal, Appellee contends that the PCRA

court erred in denying four of the remaining claims in his PCRA petition. As

noted above, the PCRA court failed to make any factual findings or set forth

any supporting analysis for its conclusion that Appellee was not entitled to

relief on these claims.

       Our courts will remand in such circumstances as “[a] developed post-

conviction record accompanied by specific factual findings and legal

conclusions is an essential tool necessary to sharpen the issues so that

differences at the appellate level can be mitigated.” Johnson, 600 Pa. at 359,

966 A.2d at 540–41.
____________________________________________


4 We cannot affirm the PCRA court’s decision on alternative grounds based on
Appellee’s original assertion that he had presented “new evidence” of his
innocence. To successfully claim that a new trial is warranted based on after-
discovered evidence, a petitioner must show that “(1) the evidence has been
discovered after trial and it could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not cumulative; (3) it is not
being used solely to impeach credibility; and (4) it would likely compel a
different verdict.”    Commonwealth v. Diggs, 220 A.3d 1112, 1117
(Pa.Super. 2019) (quoting Commonwealth v. Washington, 592 Pa. 698,
927 A.2d 586 (2007)). It is undisputed that Appellee could not meet the first
prong of this test in showing the evidence was discovered after trial as
Appellee’s counsel admitted his conversation with Attorney Silver occurred
during trial. In addition, the trial court did not analyze whether the evidence
would have been used solely to impeach Hand’s credibility or if the evidence
would likely compel a different verdict.


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      For the foregoing reasons, as Appellee failed to meet the requisite

burden to plead and prove the aforementioned ineffectiveness claim, we

conclude that the PCRA court erred in granting Appellee’s petition and

awarding him a new trial. We remand for the PCRA court to review the four

claims raised in Appellee’s cross-appeal that were not fully evaluated by Judge

Geroff.

      Order granting Appellee a new trial vacated. Remanded to the PCRA

court for further proceedings consistent with this decision.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/20




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