J.S52005/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
                                             :
EDWARD DUNPHY,                               :
                                             :
                          Appellant          :     No. 35 EDA 2013


                Appeal from the PCRA Order December 14, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0010374-2008

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED MARCH 05, 2015

        Appellant, Edward Dunphy, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his timely first Post

Conviction Relief Act1 (“PCRA”) petition. He alleges the PCRA court erred by

dismissing his petition alleging trial counsel’s ineffectiveness without an

evidentiary hearing. We vacate and remand for an evidentiary hearing.

        We state the facts as set forth by a prior panel of this Court:

               On June 7, 2008, at approximately midnight, Appellant
           was driving his vehicle while intoxicated, striking and
           killing a 20 year old pedestrian, Hannah Cintron, as she
           was crossing the northbound lanes of Delaware Avenue, a

* Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9545.
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       six-lane divided highway with a speed limit of 35 miles per
       hour.     Cintron suffered multiple, severe blunt impact
       injuries to her head, torso, and legs, sustaining a fractured
       hip, a fractured rib, a broken back and a ruptured aorta.
       Cintron was pronounced dead at the scene. As a result,
       Appellant was arrested and charged with murder in the
       third degree, 18 Pa.C.S.A. § 2502(c); involuntary
       manslaughter, 18 Pa.C.S.A. § 2504(a); homicide by
       vehicle, 75 Pa.C.S.A. § 3732; homicide by vehicle while
       driving under the influence, 75 Pa.C.S.A. § 3735(a);
       accident involving death or personal injury, 75 Pa.C.S.A. §
       3742; and driving under the influence of alcohol, 75
       Pa.C.S.A. § 3802(a)(1).

          On July 14, 2009, Appellant proceeded to a trial before
       a jury. At trial, Dennis Wright, a valet employed at Roxxy
       nightclub in the 900 block of North Delaware Avenue,
       testified that, shortly after midnight on June 7, 2008, he
       heard the sound of a truck suddenly accelerating. He
       looked towards the sound, and observed Appellant driving
       north on Delaware Avenue at approximately 60 miles per
       hour.     He also observed the victim, Hannah Cintron,
       walking across the northbound lanes of Delaware Avenue,
       in the lane closest to the median strip. Wright witnessed
       Appellant’s truck slam into Cintron, causing her to fly into
       the air, land on the hood of his truck, fly off the truck, and
       then land on the street. Wright testified that, after the
       impact, Appellant’s truck braked briefly, swerved into the
       middle lane, and then sped away at an even greater
       speed, without ever coming to a complete stop.

           Joseph Stickel, who, at the time of the accident, was
       standing on the median strip separating Delaware Avenue,
       testified that he witnessed Appellant’s truck come around
       the corner, hit Cintron, and then keep going. Stickel
       stated that he heard “someone slamming on their brakes,
       and [he] looked up and [Cintron] got hit.” Based on
       Appellant’s truck hitting Cintron, Stickel observed Cintron’s
       body fly down the road and over the truck, and then land
       in the middle of the road.

          After Appellant’s truck hit Cintron, Robert DeGuzman,
       who was working a security detail at Roxxy nightclub,
       entered his vehicle in an attempt to locate the person who


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       hit Cintron. When he reached Interstate 95, he came upon
       Appellant’s truck, which matched the description of the
       truck that hit Cintron, and he began to follow it.
       DeGuzman testified that Appellant was swerving through
       traffic. When Appellant stopped at a house at the corner
       of Madison and Tilton Streets, DeGuzman ordered
       Appellant out of the truck and handcuffed him. DeGuzman
       stated that Appellant smelled strongly of alcohol, and
       Appellant said, “I’m sorry, I didn’t mean to do it. I’m
       drunk.” DeGuzman observed that Appellant’s truck was
       damaged on the driver’s side, including the windshield,
       which was “squashed all the way down.”

          Officer Michael DeRose arrived at Madison and Tilton
       Streets after DeGuzman had stopped Appellant. DeRose
       testified that, when he arrested Appellant, he noticed a
       very strong odor of alcohol on Appellant. Further, he
       stated that Appellant “kept saying over and over and over
       again that he was sorry.”

          After Appellant was arrested, Officer Robert Reppert
       interviewed him.        Reppert testified that Appellant
       consented to a blood test, which was performed at 1:40
       a.m. He further testified that he questioned Appellant
       about the incident and that, Appellant stated that he had
       been at McFadden’s Bar and had consumed “several shots
       and several beers” over the course of two or three hours.
       Appellant further stated to Reppert that he then got into
       his truck and headed to his cousin’s house because he
       “didn’t think [he] could make it home.” Appellant told
       Reppert that, as he was driving on Delaware Avenue, he
       saw pedestrians crossing the street approximately 50 to
       100 yards in front of him, but he accelerated to “make the
       next light.” When asked if he struck any people with his
       truck, Appellant stated, “Not to my knowledge, no, sir.”
       Appellant admitted to Reppert that his truck had not been
       damaged earlier in the evening.

          Richard D. Cohn, Ph.D., testified as an expert for the
       Commonwealth in the areas of pharmacology and forensic
       toxicology. Cohn testified that Appellant’s blood alcohol
       content was .183% at the time his blood was drawn. Cohn
       concluded that Appellant would have consumed a
       minimum of ten or eleven drinks for his blood alcohol to be


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         .183% at the time his blood was drawn. Cohn further
         testified that, in his opinion, Appellant was incapable of
         safely operating a vehicle.

            Officer William Lackman of the Philadelphia Police
         Department’s Accident Investigation Division testified as
         an expert on accident reconstruction on behalf of the
         Commonwealth.       Lackman testified that Citron’s body
         came to rest about 178 feet north of where she was
         originally hit by Appellant’s truck, and that she was either
         airborne or on the hood of the truck for 135 feet. Lackman
         stated that the Airbag Control Module of Appellant’s truck
         confirmed that he was traveling between 59 and 60 miles
         an hour when he hit Cintron, and that Cintron was
         traveling approximately 50 miles per hour when she flew
         off the hood of the truck. Lackman further stated that
         there were skid marks at the scene, which indicated that
         Appellant applied his brakes after striking Cintron, but
         never came to a complete stop. Lackman concluded that
         Appellant’s truck striking Cintron caused her death.

Commonwealth v. Dunphy, 20 A.3d 1215, 1217-18 (Pa. Super. 2011)

(citations and footnote omitted).

      We add that during his opening argument, Appellant’s counsel argued

Appellant was guilty “beyond a reasonable doubt” of homicide by vehicle

while driving under the influence, accidents involving personal injury or

death, and driving under the influence. N.T., 7/14/09, at 49-50. Mid-trial,

based upon perceived conflicting evidence, Appellant’s counsel stated he

may retract his opening argument and argue Appellant was innocent of

homicide by vehicle. N.T. Trial, 7/15/09, at 114. The trial court was less

than pleased and, at sidebar, expressed apparent frustration at what it

believed was counsel’s lack of preparation:




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       The court: Well, the problem I have is the way you opened
       to the jury in this case, you took a lot of issues out of the
       case. And one of the issues you took out of the case was
       causation.

       [Commonwealth]: Right.

       The court: You didn’t tell the jury that at the end of the
       case you were going to ask them to find that it wasn’t
       because he was drunk that he hit the pedestrian; that it
       was because he was speeding that he hit the pedestrian;
       that being drunk had nothing to do with it. You didn’t say
       that.

          You said, “At the end of the case you’re going to find
       beyond a reasonable doubt that he’s guilty of homicide by
       vehicle while DUI,” which carries—remember I asked you,
       does your client know that’s a mandatory three to six
       years? And you said, yes, you had discussed that with
       him.

          Now I don’t know what to colloquy him on exactly
       because I don’t know what his perception is of what you’re
       doing. And I’m not sure what you’re doing, [Appellant’s
       counsel]. You seem to have put an issue back in the case,
       or try to.

          In other words, we can put the issue back in the case,
       we can ask the jury to decide it and to disregard—you can
       ask the jury; I wouldn’t. I’ll just charge them on the law
       but to disregard what you said earlier. And I have to now
       figure out with your client when I colloquy him, is he to
       say he understands all this?

       [Appellant’s counsel]: We’ve discussed it completely, Your
       Honor.

       The court: That now he understands that you’re trying to
       put an issue in the case that you originally admitted to the
       jury?

       [Appellant’s counsel]: Yes, he does, Your Honor.

                                *    *    *


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       The court: . . . I mean, this is the first time you figured out
       that maybe you could argue that it wasn’t the alcohol, it
       was the speed?

       [Appellant’s counsel]: Your Honor, I—I really can say that
       it was as the testimony was coming about that I realized
       that his calculation was from 300 feet away, but there was
       a possibility that from the statement that it was 150 feet
       away. And when that calculation is made, it only leaves
       ten feet—if the jury assumes that it was actually 150 feet
       away, it only leaves ten feet for the avoidance of an
       accident.

       The court: What was only 150 feet away?

       [Appellant’s counsel]: If the range that [Appellant] gave
       that he said he observed people on the roadway was 50 to
       a hundred yards and Officer Lackman indicated that that
       was 150 to 300 feet—

       The court: Yes.

       [Appellant’s counsel]: —all Officer Lackman’s assumptions
       were based on 300 feet.

       The court: [Appellant’s] statement.

       [Appellant’s counsel]: Right.

       The court: Yes.

       [Appellant’s counsel]: But if the jury believes that it was
       150 feet away and that—

       The court: On what basis would they believe that?

       [Appellant’s counsel]: It was, according to [Appellant], 50
       yards, which would be 150 feet, or 300 feet.

       The court: Yes.

       [Appellant’s counsel]: If they reject that it was 300 feet
       away.


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       The court: But you always had your client’s statement, so
       you always knew that calculation; yes?

       [Commonwealth]: [Appellant] said in his statement he saw
       the pedestrians in the road 50 to a hundred yards away.

       The court: Yes.

       [Commonwealth]: So [Appellant] perceived the hazard in
       the road. This isn’t a situation that he didn’t perceive it.

       The court: No. I just don’t understand why having had
       these numbers from the day you [i.e., Appellant’s
       counsel,] first got your client’s statement, which was in the
       first discovery packet, which was at the time of his arrest—

       [Appellant’s counsel]: I didn’t have the conclusion, Your
       Honor, that it was 87.9 feet per second, which would
       translate into 140 feet at 1.6 seconds of delay time.

       [Commonwealth]: He had 300 feet of notice that there
       were people crossing the road. He didn’t react.

       [Appellant’s counsel]: 150 to 300 feet, whichever the jury
       decides is accurate.

       The court: Well, it’s his own testimony.

       [Commonwealth]: Right.       It’s his statement; that he
       perceived the danger in the road.

       The court: But I just don’t understand why you didn’t see
       this possibility of arguing this a long time ago and avoid
       this problem that we now have of where are we in this
       case.

          What are the charges that he’s admitting?

          I take it he’s admitting to leaving the scene of the
       accident; he’s admitting to DUI; and he’s admitting to—
       that’s it. And that the other two charges you think should
       go to the jury for their decision. And then you’re asking
       for an involuntary manslaughter charge.


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         [Appellant’s counsel]: Yes, Your Honor.

         The court: On the basis that it could have been the shorter
         distance.

         [Appellant’s counsel]: Yes.

         The court: And then you think you can argue to the jury
         that if it was the shorter distance, nobody could have
         avoided the accident?

         [Appellant’s counsel]: That’s what my argument will be,
         Your Honor, yes.

         The court: All right. Let’s go.     And you can make your
         motion and I’ll do the colloquy.

         [Appellant’s counsel]: Yes.

Id. at 117-24 (capitalization omitted).

             On July 15, 2009, after the parties presented their
         evidence and arguments to the jury, Appellant pleaded
         guilty to driving under the influence of alcohol and accident
         involving death or personal injury. The jury subsequently
         found Appellant guilty of third degree murder.            On
         September 16, 2009, the trial court sentenced Appellant to
         seven to fourteen years’ imprisonment for third degree
         murder; a consecutive term of one to two years’
         imprisonment for accident involving death or personal
         injury; and sixth months’ probation for driving under the
         influence of alcohol, to be served concurrently with his
         other sentences.

Dunphy, 20 A.3d at 1218. Appellant appealed, and this Court affirmed on

May 6, 2011.    See id.    Appellant did not file a petition for allowance of

appeal with our Supreme Court.

      On April 13, 2012, Appellant timely filed a counseled PCRA petition.

On October 26, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice. On


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November 30, 2012, the PCRA court heard arguments on its Rule 907

notice. On December 17, 2012, the PCRA court dismissed Appellant’s PCRA

petition. Appellant timely appealed. The PCRA judge retired on December

31, 2012, and the case was reassigned to a new judge.

      On January 23, 2013, the PCRA court ordered Appellant to comply with

Pa.R.A.P. 1925(b) within twenty-one days. Appellant’s PCRA counsel filed an

untimely Rule 1925(b) statement on February 27, 2013.2 Because the PCRA

judge had retired at the end of 2012, a responsive Rule 1925(a) decision

was not prepared.

      Appellant raises the following issue:

         Whether, in violation of the United States and
         Pennsylvania constitutions, the PCRA court erred in
         dismissing [Appellant’s PCRA] petition on grounds of
         ineffective assistance of counsel without an evidentiary
         hearing?

Appellant’s Brief at 2.

      Appellant contends that the PCRA court should have held an

evidentiary hearing when the trial court announced at trial that his counsel

failed to prepare for trial and was causing the jury to be confused with an

abrupt change of defense strategy. Id. at 22. Appellant maintains that the

record reflects trial counsel had no excuse for his confusion and lack of


2
  We decline to find waiver, however. Cf. Commonwealth v. Britt, 83 A.3d
198, 203 (Pa. Super. 2013) (holding untimely filing of Rule 1925(b)
statement by counsel is per se ineffective assistance of counsel).




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preparation. He insists trial counsel was ineffective for failing to object to

the trial court’s mid-trial guilty plea colloquy as counsel was unprepared for

trial. We hold Appellant is due limited relief, as set forth below.

      “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. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008). With respect to claims of counsel’s

ineffectiveness, we state the following as background:

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth          v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted).        Our Supreme Court has made

“clear this Court’s strong preference that counsel be heard from before being

found ineffective.”    Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa.

2010).

      In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”



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counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the

other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.”    Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted).

     A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim. Washington, 927 A.2d at 594. “In the context of a

PCRA proceeding, [the defendant] must establish that the ineffective

assistance of counsel was of the type ‘which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”    Id.

(citations omitted).   The defendant must establish actual prejudice, or

demonstrate that the alleged act of ineffectiveness falls within a narrow

range of circumstances in which there is a presumption of prejudice.

Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).

     Given the unique set of facts and trial counsel’s strategy, as set forth

above, and the absence of any PCRA court opinion, out of an abundance of

caution, we think it prudent to remand for an evidentiary hearing at which

trial counsel can testify.   See Colavita, 993 A.2d at 895; see also

Washington, 927 A.2d at 594; Miller, 431 A.2d at 234. The PCRA court




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shall also render its findings and conclusions on the record and prepare a

written opinion.

      Order    vacated.      Case   remanded   for   an   evidentiary   hearing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015




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