J-S14003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
FREDDIE IALONGO,                          :
                                          :
                    Appellant             : No. 1773 EDA 2013

                    Appeal from the PCRA Order May 17, 2013,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0407461-2006

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED APRIL 21, 2015

      Appellant, Freddie Ialongo (“Ialongo”), appeals pro se from the order

entered on May 17, 2013 in the Court of Common Pleas, Philadelphia

County, dismissing his petition for relief pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. For the reasons that follow,

we vacate the PCRA court’s order and remand for an evidentiary hearing.

      At   trial   commencing    on   October   3,   2007,   Michael   Klugman

(“Klugman”) testified that at approximately 6:30 p.m. on January 10, 2006,

he was working at the Pink Rose Pastry Shop located at 630 S. 4th Street in

Philadelphia when someone he later identified as Ialongo approached the

counter, pulled a gun, and demanded money. N.T., 10/3/07, at 73-81. In

the search accompanying Ialongo’s arrest, the police recovered $212 dollars

in twenties, tens, fives, and one-dollar bills, and the serial numbers on some
J-S14003-15


of the five-dollar bills were in sequential order. Id. at 49-55, 151. Counsel

for Ialongo stipulated at trial that Larry Frank, the owner of the Pink Rose,

would (if called) testify that on the morning of the robbery, he put a number

of five-dollar bills into the cash register, and that because he had obtained

those bills directly from the bank, they should have been in sequential order.

Id. at 132-33.

      The jury found Ialongo guilty of robbery, 18 Pa.C.S.A. § 3701(a)(1),

and possession of an instrument of crime, 18 Pa.C.S.A. § 907(a), and on

January 18, 2008, the trial court sentenced Ialongo to a term of

imprisonment of from five to ten years of incarceration for robbery and no

further penalty on the second conviction.     On May 11, 2009, this Court

affirmed the judgment of sentence, and on February 16, 2010, our Supreme

Court denied Ialongo’s petition for allowance of appeal.

      On March 22, 2010, Ialongo filed a PCRA petition, and on April 11,

2011 court-appointed counsel filed an amended PCRA petition. On May 17,

2013, after issuing a notice of intent to dismiss pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure, the PCRA court dismissed

Ialongo’s PCRA petition without conducting an evidentiary hearing. On June

17, 2013, appointed counsel filed a notice of appeal.      On July 9, 2013,

Ialongo filed a motion stating his desire to terminate the relationship with

appointed PCRA counsel and proceed pro se, and on September 3, 2013, this

Court remanded the case to the PCRA court to conduct a Grazier hearing on



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this request. On February 28, 2014, the PCRA court held a Grazier hearing

and determined that Ialongo could represent himself on appeal. On March

4, 2014, the PCRA court ordered Ialongo to file a statement of issues

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules

of Appellate Procedure. Ialongo filed his Rule 1925(b) statement on March

29, 2014, and on June 27, 2014 the PCRA court filed a written opinion

pursuant to Rule 1925(a) addressing the issues set forth therein.

     On appeal, Ialongo raises the following six issues for our review and

determination:

           1. Was trial counsel effective when he failed to call a
           known alibi witness to testify?

           2. Was trial counsel effective by agreeing to the
           stipulated statement (presumably by Larry Frank
           (store’s owner) concerning the sequential order of
           five dollar bills; The said stipulation was so harmful
           and prejudicial it was like pleading [Ialongo] guilty in
           the middle of a jury trial--making trial a foregone
           conclusion, in which was trial counsel effective when
           he did not request an [] on the record colloquy
           required by Davis surrounding a guilty plea?

           3. By way of the above mentioned stipulation (by
           Larry Frank) did counsel give up [Ialongo’s]
           constitutional rights of due process; the 14th
           Amendment Confrontational Clause, does counsel
           deny [Ialongo] his right to cross examine his
           accuser?

           4. Was counsel effective when he did not interview at
           any time the affiant of said stipulation (Larry Frank)
           after reviewing the police records and discovery and
           seeing nowhere in the discovery a statement ever




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                made by Larry Frank concerning the sequential
                ordered money?

                5.    Was trial counsel effective when trial judge
                denied the Kloiber request and trial judge suggested
                counsel to come up with something a little less[,]
                was counsel effective when he did not ask for a
                denial of a line up charge Pa.R.C.P. 2d § 1241 or
                consideration of suggestiveness of preliminary and or
                trial I.D. Pa.R.C.P. 2d § 1240? Was trial judge in
                error for not granting [an] instruction?

                6. Was trial counsel effective when he allows the
                Commonwealth to commit prosecutorial conduct,
                when trial counsel allows the Commonwealth to use
                a false statement by way of the stipulation
                (presumed) by Larry Frank concerning the
                “sequential order of money”?

Ialongo’s Brief at 2-3.

         On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. Commonwealth v. Ghisoiu, 63 A.3d 1272,

1273-74 (Pa. Super.), appeal denied, 74 A.3d 125 (Pa. 2013).               The six

issues raised by Ialongo all assert claims of ineffective assistance of trial

counsel, for which a petitioner must demonstrate that: (1) the underlying

legal issue has arguable merit; (2) trial counsel's actions lacked a reasonable

basis;    and    (3) counsel's act or     omission   prejudiced the     petitioner.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).                     A claim of

ineffectiveness will be denied if the petitioner fails to satisfy any one of these

prongs. Id.




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       For his first issue on appeal, Ialongo claims that his trial counsel

rendered ineffective assistance by failing to call three alibi witnesses: Lisa

Ialongo (his sister), Ann Ialongo (his mother), and John Hendricks. 1         To

begin, both 42 Pa.C.S.A. § 9545(d)(1) and Rule 902(A)(15) of the

Pennsylvania Rules of Criminal Procedure provide that when a PCRA

petitioner requests an evidentiary hearing, he shall include a certification as

to each intended witness, stating the witness’s name, address, date of birth,

and the substance of the witness’s testimony. Commonwealth v. Pander,

100 A.3d 626, 640 (Pa. Super. 2014).         In the present case, Ialongo has

complied with this requirement, attaching both certifications for the three

alibi witnesses as well as signed affidavits from each of them.        Amended

PCRA Petition, 4/11/2011, Exhibits A and B.

       In her affidavit, Lisa Ialongo states that she informed her brother’s

appointed counsel that on the day of the robbery (January 10, 2006),

Ialongo spent the entire day with her. She provides a detailed account of

the events of that day, including her call to him asking that he come over

because she had just had a fight with her child’s father the night before and

was afraid of him returning. She recounted eating all three meals during the

day (e.g., cereal, lunchmeat sandwiches) with Ialongo, and explained that

after dinner they watched TV with her son, during which all three fell asleep.

Ann Ialongo testified in her affidavit that she informed appointed counsel of


1
    On October 31, 2006, Ialongo’s trial counsel filed a Notice of Alibi Defense.


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the need to talk to her daughter Lisa, as she was aware of Lisa’s altercation

with her son’s father and Ialongo’s resulting presence at her daughter’s

home on January 10, 2006. Finally, in his affidavit, John Hendricks testified

about Ialongo’s presence at a birthday party for Lisa’s Ialongo’s son on

December 10, 2005.

      In this case, the PCRA court did not contest that the failure to call alibi

witnesses presents a claim of arguable merit. Instead, the PCRA court and

the Commonwealth focus on the second and third prongs of the test for

ineffective assistance of counsel. With regard to the second prong, the PCRA

court found that appointed counsel had a strategic basis for not calling Lisa

Ialongo to testify at trial.2   In particular, the PCRA court indicated that in



2
   The PCRA court rejected the proffered testimonies of Ann Ialongo and
John Hendricks in their entirety. The PCRA court did so correctly with
respect to John Hendricks, as his affidavit related his knowledge of Ialongo’s
location on December 10, 2005, a month prior to the robbery at issue here.

With respect to the testimony of Ann Ialongo, however, the PCRA court
plainly erred. The PCRA court stated that “Ann Ialongo’s affidavit does
mention a conversation with Lisa Ialongo in which Lisa told Ann that
[Ialongo] was with Lisa the day of the robbery, however Ann also states
she never informed trial counsel of that.”            PCRA Court Opinion,
6/27/2014, at 5 n.4 (emphasis added). Ann Ialongo’s affidavit in fact
provides precisely the opposite information, namely that she did inform trial
counsel about Lisa’s alibi testimony:

            I also spoke to Mr. Schrading [trial counsel] about
            how my daughter, Lisa Ialongo, told me my son was
            with her all day on 1/10/06, because of a[n]
            altercation she had with her babies [sic] father, and
            her having to throw him out the night before
            1/9/06…. Mr. Schrading told me he was aware of


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August 2002, Lisa Ialongo had pleaded guilty to forgery and related charges,

and that because forgery is a crimen falsi crime, it could have been used to

question her credibility.    As such, the PCRA court determined that “[t]his

guilty plea by the defendant’s sister would have likely discredited her

testimony,” and hence “counsel had a reasonable basis for not calling her.”

PCRA Court Opinion, 6/27/2014, at 6.

      The PCRA court, however, failed to conduct an evidentiary hearing at

which Ialongo’s trial counsel could testify regarding his actual strategies,

and thus the PCRA court’s decision is not supported by any evidence in the

certified   record   on   appeal.   The   “reasonable   basis”   prong   of   the

ineffectiveness test is not satisfied merely because appointed counsel (or the

PCRA court) is able to concoct a strategic basis that fits with trial counsel’s

actions or omissions. See, e.g., Commonwealth v. Duffey, 855 A.2d 764,

775 (Pa. 2004) (in the absence of testimony from counsel, the court “should

refrain from gleaning whether … a reasonable basis exists”). “The ultimate

focus of an ineffectiveness inquiry is always upon counsel, and not upon an

alleged defect in the abstract.” Commonwealth v. Koehler, 36 A.3d 121,

132 (Pa. 2012) (quoting Commonwealth v. Colivita, 993 A.2d 874, 896

(Pa. 2010)).     Only where the record on appeal clearly establishes the



             my daughters Alibi, and assured me, he was doing
             all he can for my son, [Ialongo].

Amended PCRA Petition, 4/11/2011, Exhibit B.


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reasonable basis prong may the issue be decided without an evidentiary

hearing to determine trial counsel’s actual strategies.      Commonwealth v.

Williams, 899 A.2d 1060, 1065 (Pa. 2006) (citing Commonwealth v.

McGill, 832 A.2d 1014 (Pa. 2003)). Our Supreme Court “has expressed a

distinct preference for a hearing on counsel’s strategy before venturing to

hold that counsel lacked a reasonable basis for his or her actions.”

Commonwealth v. Gribble, 863 A.2d 455, 473-74 (Pa. 2004). As such, in

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

recognized that “[o]ur Supreme Court has cautioned against speculating

about the reasons for counsel’s actions in the absence of an evidentiary

hearing, except in the clearest of cases.” Id. at 937.

      This is not the “clearest of cases,” as the PCRA court’s decision is

unsupported by any evidence in the certified record and is instead, in the

absence of testimony from trial counsel, mostly speculation.          The only

reference in the certified record to Lisa Ialongo’s forgery conviction is in the

Commonwealth’s       motion     to   dismiss     Ialongo’s     PCRA    petition.

Commonwealth’s Motion to Dismiss, 10/26/2012, ¶ 14.             This motion to

dismiss was filed more than three years after trial, however, and the

certified record contains no evidence that at the time of trial (when trial

counsel made the decision not to call Lisa Ialongo to testify), trial counsel

was even aware of the existence of the conviction. As a result, the certified

record does not support the PCRA court’s conjecture that trial counsel did



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not call Lisa Ialongo as an alibi witness because of a concern that the prior

crimen falsi conviction would ruin her credibility.

      The certified record contains no other evidence of trial counsel’s

strategic reasoning for his decision not to call Lisa Ialongo (or Ann Ialongo)

as alibi witnesses. To the contrary, trial counsel’s clear strategy at trial was

misidentification.     In his closing argument, trial counsel argued that

Klugman’s identification was mistaken and emphasized that Ialongo had

been cleared of suspicion in connection with three other similar robberies (of

similar shops in the same neighborhood (all on South Street) during the

same time frame), after it was determined that he had been in jail on

unrelated charges at the time of the three other crimes. N.T., 10/4/2007, at

116-120.     In its closing argument, the Commonwealth admitted that

Ialongo’s presence in jail provided him with the “best alibi that exists ever”

for the three other robberies:

            We have four robberies, ladies and gentlemen, that
            are at issue in this case, Pink Rose Pastry and the
            three robberies which occurred when he was in
            custody, when he was in jail, the best alibi that
            exists ever. It is proven beyond all doubt, the same
            person cannot be in two places at once.

            When it is discovered that [Ialongo] was in jail,
            those cases ceased to exist because the same person
            can’t be in the same place at the same time. So for
            those cases the best alibi exists.

            [Ialongo’s trial counsel] wants you to take this leap
            and say the same guy is robbing all of these places,
            the same robber is robbing each and every store.



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Id. at 151-52.

        Alibi testimony from Lisa Ialongo regarding Ialongo’s whereabouts on

January 10, 2006 (the only date for which jail did not provide him with the

“best     alibi”)     would   have   substantially   reinforced   trial   counsel’s

misidentification strategy.      The test for deciding whether counsel had a

reasonable basis for his action or inaction is whether no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success. Commonwealth

v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citing Commonwealth v.

Colavita, 993 A.2d 874 (Pa. 2010)), appeal denied, 93 A.3d 463 (Pa. 2014).

In the absence of an evidentiary hearing, the certified record contains no

evidence or other basis for application of this test or to conduct appellate

review.

        We turn, then, to the third prong of the test for ineffective assistance

of counsel.         To satisfy the prejudice prong when asserting 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




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a fair trial. Commonwealth v. Sneed, 616 Pa. 1, 22–23, 45 A.3d 1096,

1108–09 (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 certifications and affidavits attached to Ialongo’s amended PCRA

petition establish the first four prongs of this test, including the identity of

the proposed alibi witnesses and trial counsel’s knowledge of the substance

of their potential testimony. To demonstrate the fifth prong of this test, a

petitioner “must show how the uncalled witnesses' testimony would have

been beneficial under the circumstances of the case.” Commonwealth v.

Gibson, 951 A.2d 1110, 1134 (Pa. 2008). Thus, counsel will not be found

ineffective for failing to call a witness unless the petitioner can show that the

witness's    testimony     would     have     been     helpful    to     the     defense.

Commonwealth v. Stewart, 84 A.3d 701, 714 (Pa. Super. 2013), appeal

denied, 93 A.3d 463 (Pa. 2014).

       In this case, the PCRA court determined that Ialongo had not

demonstrated prejudice resulting from trial counsel’s failure to call alibi

witnesses,   principally   Lisa    Ialongo.      The   PCRA      court   cited    to   the

“overwhelming evidence” of Ialongo’s guilt as presented at trial, namely

Klugman’s identification and the sequentially numbered five-dollar bills.




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Trial Court Opinion, 6/27/2014, at 6.        The PCRA court also noted Lisa

Ialongo’s forgery conviction in its analysis of the prejudice prong. Id.

      In its analysis, however, the PCRA court did not consider the nature

and importance of alibi evidence.     Our Supreme Court has instructed as

follows:

            Generally, “[a]n alibi is ‘a defense that places the
            defendant at the relevant time in a different place
            than the scene involved and so removed therefrom
            as to render it impossible for him to be the guilty
            party.’ ” Commonwealth v. Rainey, 593 Pa. 67,
            928 A.2d 215, 234 (2007) (quoting Commonwealth
            v. Roxberry, 529 Pa. 160, 602 A.2d 826, 827
            (1992)).     When alibi evidence is introduced, the
            defendant is entitled to an alibi instruction.
            Commonwealth v. Hawkins, 586 Pa. 366, 894
            A.2d 716, 718 (2006). A trial court should instruct a
            jury to acquit if the defendant's alibi evidence, even
            if not wholly believed, raises a reasonable doubt as
            to whether he was present at the scene of the crime
            when the crime was committed. Id. at 717–18
            (citing Commonwealth v. Pounds, 490 Pa. 621,
            417 A.2d 597, 603 (1980)).         The instruction is
            “critically important to offset ‘the danger that the
            failure to prove the defense will be taken by the jury
            as a sign of the defendant's guilt.’ ” Id. at 718
            (quoting Pounds, 417 A.2d at 603). In Pounds,
            “[w]e explained that the defendant bears no burden
            of proof in a criminal case, and that to infer guilt
            based upon a failure to establish an alibi
            ‘contravenes the presumption of innocence and the
            Commonwealth's burden of proving the offense
            beyond a reasonable doubt.’ ” Id. (quoting Pounds,
            417 A.2d at 603 n. 17).

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009). Similarly, this

Court has stated:




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           When the defendant generally denies his guilt, he is
           simply saying “I didn't do it.” An alibi defense, on the
           other hand, not only declares “I didn't do it” but also
           says: “and it couldn't possibly have been me since I
           was someplace else when the crime occurred.” …
           Alibi [evidence,] “if believed, isolate[s the defendant]
           from all possible interaction with the victim and the
           crime scene.” Commonwealth v. Collins, 549 Pa.
           593, 702 A.2d 540, 545 (1997).

Commonwealth v. Hall, 867 A.2d 619, 636-37 (Pa. Super. 2005).

       As such, an alibi defense could have “isolated” Ialongo from any

interaction with Klugman at the Pink Rose Pastry Shop and substantially

bolstered his overall misidentification defense.       Moreover, since Ialongo

would not have had the burden to prove his alibi, it is unnecessary that the

alibi testimony be “wholly believed.” Johnson, 966 A.2d at 536. Instead,

the burden of proof remains with the Commonwealth and the alibi testimony

only needs to raise “a reasonable doubt as to whether he was present at the

scene of the crime when the crime was committed.” Id.

      Accordingly, the question is whether Lisa Ialongo could have been a

sufficiently credible witness at trial, despite her prior convictions and familial

relationship,3 to raise a reasonable doubt regarding Ialongo’s whereabouts

on January 10, 2006.      Because it did not conduct an evidentiary hearing,

however, the PCRA court had no opportunity to assess Lisa Ialongo’s

credibility. “[O]ne of the primary reasons PCRA hearings are held in the first


3
   Familial witnesses by their very nature are biased. See Commonwealth
v. Weiss, 606 A.2d 439, 443 (Pa. 1992). The fact-finder must weigh that
bias against the testimony offered in assessing its weight. Id.


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place is so that credibility determinations can be made; otherwise, issues of

material fact could be decided on pleadings and affidavits alone.”        Id. at

539; see also Commonwealth v. Gibson, 951 A.2d 1110, 1122 (Pa.

2008) (“[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.”).    The PCRA court’s decision that the jury would not have

believed Lisa Ialongo’s testimony, without first conducting an evidentiary

hearing to hear her testimony, was error.

       We of course take no position regarding the ultimate merits (or lack

thereof) of Ialongo’s ineffectiveness claim. Instead, we conclude only that

he has raised issues of material fact and the trial court erred in not

conducting an evidentiary hearing.      As this Court has held, “[w]hen an

arguable claim of ineffective assistance of counsel has been made, and there

has been no evidentiary hearing in the [PCRA court] to permit the defendant

to develop evidence on the record to support the claim, and to provide the

Commonwealth an opportunity to rebut the claim, this Court will remand for

such a hearing.”    Commonwealth v. Savage, 695 A.2d 820, 825 (Pa.

Super. 1997). For this reason, a remand for an evidentiary hearing is the

proper course.

      Ialongo’s second, third, fourth, and sixth issues on appeal all relate to

trial counsel’s stipulation at trial that Larry Frank, the owner of the Pink Rose



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Pastry Shop, would (if called) have testified that on the morning of the

robbery he put a number of five-dollar bills into the cash register, and that

because he had obtained those bills directly from the bank, they would likely

have been in sequential order.     Ialongo argues that at the time of the

stipulation, the certified record contained no evidence to support this

stipulation, as Frank had not provided any such statement to police or

prosecutors.   Ialongo’s Brief at 17.   Ialongo further contends that without

the stipulation, the evidence would not have been introduced, since at the

time of trial Frank was out of the country and thus could not have testified

against him.    Id. at 21.   Finally, Ialongo attached to his original PCRA

petition what appears to be a signed statement from Frank, in which Frank

indicates that he never spoke to the district attorney about the case and that

“if the bills were new from the bank, I usually would alternate them with old

bills so they wouldn’t stick together.” PCRA Petition, 3/17/2010, Exhibit M.

      Based upon our review of the certified record, these issues have not

been preserved for appellate review. While Ialongo set forth these issues in

his original PCRA petition filed on March 17, 2010, appointed PCRA counsel

did not include them in the Amended PCRA Petition filed on April 11, 2011.

On August 22, 2011, Ialongo filed a “Motion to Re-Amend PCRA or Re-

Submit Original Pro Se Version,” and on August 22, 2011 he offered a pro se

supplemental PCRA petition entitled “Re-Amended for Review.”




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      In both his “Motion to Re-Amend” and “Re-Amended for Review”

filings, Ialongo attempted to reassert his ineffectiveness claims related to

the Frank stipulation. At the time of these filings, however, Ialongo was still

represented by appointed PCRA counsel, as he did not request the right to

terminate   his   appointed   PCRA    counsel     until   April   8,   2013.   In

Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011), our Supreme Court

reiterated its “long-standing policy that precludes hybrid representation,”

including during PCRA proceedings. Id. at 1036; see also Commonwealth

v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (no hybrid representation during

PCRA proceedings, stating “[w]e will not require courts considering PCRA

petitions to struggle through the pro se filings of defendants when qualified

counsel represent those defendants”).         Because all claims relating to the

Frank stipulation at trial were abandoned in the counseled amended PCRA

petition, they were not preserved for appeal and we may not address them.

      Finally, for his fifth issue on appeal, Ialongo contends that trial counsel

was ineffective for failing to insist on an alternative instruction regarding

Klugman’s identification testimony after the trial court denied a request for a

Kloiber charge.4 Again, however, this issue was not preserved for appeal



4
   Per Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), a Kloiber is
an instruction that “a witness's identification should be viewed with caution
[] where the eyewitness: (1) did not have an opportunity to clearly view the
defendant; (2) equivocated on the identification of the defendant; or (3) had
a problem making an identification in the past.” Commonwealth v. Ali, 10
A.3d 282, 303 (Pa. 2010).


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because it was not included in appointed counsel’s amended PCRA petition.

In the amended PCRA petition, appointed counsel raised only the issue of

direct appellate counsel’s failure to raise the Kloiber issue on direct appeal.

Amended PCRA Petition, 4/11/2011, ¶ 7(4)-(5).

      Even if the issue had been preserved for review, we note that during

its charge to the jury, the trial court offered detailed instructions on

eyewitness    identification,   explaining     in   connection   with   Klugman’s

identification as follows:

             In evaluating his testimony in addition to the other
             instructions I have given you or will give you
             providing for the judging witnesses, you should
             consider the additional following factors: Did the
             witness have a good opportunity to observe the
             perpetrator of the offense? Two, was there sufficient
             lighting for him to make observations? Three, was
             he close enough to the individual to note his facial or
             other physical characteristics as well as any clothing
             he was wearing?        Next, has he made a prior
             identification of the defendant as the perpetrator of
             these crimes at any other proceeding? Was his
             identification positive or was it qualified by any
             hedging or inconsistencies? During the course of this
             case did the witness identify anyone else as the
             perpetrator?

             In considering whether or not to accept the
             testimony of Michael Klugman, you should consider
             all of these circumstances under which the
             identifications were made.

N.T., 10/5/2007, at 21-22.




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      Order vacated and case remanded to the PCRA court for an

evidentiary hearing on Ialongo’s first issue on appeal.5         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2015




5
   Ialongo’s motion to strike the Commonwealth’s appellate brief is granted.
On November 17, 2014, the Commonwealth requested an extension of time
of 60 days to file its appellate brief, and this Court granted the
Commonwealth’s request in its entirety, permitting the Commonwealth until
January 16, 2014 to file its brief. The Commonwealth did not, however, file
its appellate brief until February 20, 2015. Because the Commonwealth did
not prepare and submit its brief within the expanded time period it
requested, the late-filed brief is stricken and was not considered on appeal.


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