J-E01001-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
KARIM HUSIEN WRIGHT,                    :
                                        :
                  Appellant             :   No. 648 MDA 2011

           Appeal from the PCRA Order entered March 11, 2011,
                  Court of Common Pleas, Berks County,
             Criminal Division at No. CP-06-CR-0004799-2002

BEFORE:    GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
           DONOHUE, ALLEN, LAZARUS, MUNDY and OLSON, JJ.

DISSENTING MEMORANDUM BY DONOHUE, J.:             FILED AUGUST 05, 2014

      Our Supreme Court has recognized that every PCRA litigant is entitled



                                            Commonwealth v. Alexander,

432 A.2d 182, 186 (Pa. 1981); see also Commonwealth v. Kaufmann,

592 A.2d 69



ability to frame the issues in a legally meaningful fashion insures the trial

court that all relevant considerations w

Commonwealth v. Carrier, 431 A.2d 271, 273 (Pa. 1981). Accordingly, by



case in which a defendant has filed a motion for post-conviction collateral

review for the first time and is unable to afford counsel or otherwise procure
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rule mandating the appointment of counsel to first-time petitioners for PCRA

                              o the naming of an attorney to represent an

accused, but also envisions that counsel so appointed shall have the

opportunity and in fact discharge the responsibilities required by his

representation      Commonwealth v. Fiero, 341 A.2d 448, 450 (Pa. 1975)

(emphasis added); see also Commonwealth v. Perez, 799 A.2d 848, 852-

53 (Pa. Super. 2002); Kaufmann, 592 A.2d at 698.          The functions of an

advocate in discharging the responsibilities of the representation include

                                                   aint, investigation of the

                                                                  Kaufmann,

592 A.2d at 697 (quoting Commonwealth v. Mitchell, 235 A.2d 148 (Pa.

1967)).

      Four attorneys have been appointed to represent Karim Husein Wright

          ) since the time he filed his first pro se PCRA petition.   None of



whatsoever, and in fact all four have failed with respect to their professional

obligations to him. By their own admissions, none of them ever made any



ineffectiveness claims, including no efforts to interview any of the potential

witnesses identified by Wright or to ascertain from his trial counsel what

strategic basis he had for his actions at trial. Likewise, none of these four



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PCRA relief or to provide either the trial court or this Court with a more

articulate statement of his claims than what Wright has himself provided in

pro se

discharge their professional responsibilities).   For these reasons, I cannot

                                                               st respectfully

dissent.

      This embarrassing saga of patently deficient and inexplicably dilatory

performances by appointed counsel begins on May 6, 2005, when Wright

filed a pro se PCRA petition, raising 13 issues. The PCRA court appointed

Attorney Gail C

of the next two years, Attorney Chiodo apparently performed no services on



counsel was the filing of four requests for extensions of time to file an

amended counseled PCRA petition or a Turner/Finley1 no-merit letter. The

PCRA court, without explanation, granted all four requests, providing

Attorney Chiodo with extensions of time until August 12, 2005, October 31,

2005, January 31, 2006, and April 28, 2006. After another year of docket



counsel.



1
   Commonwealth v. Turner, 544 A.2d 927 (Pa.                     1998),   and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).


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and appointed Attorney Lara Glenn

Wright, providing her with an extension of time until August 3, 2007 to file

an amended counseled PCRA petition or a Turner/Finley no-merit letter.

Attorney Hoffert likewise apparently performed no services on Wri




November 30, 2007 and then until March 31, 2008.        In December 2007,

Attorney Hoffert filed a motion to wi

PCRA court granted.




quarter years, Attorney Daringer filed eight requests for extensions of time.

Without any explanation for permitting such extraordinary and inordinate

delays, the PCRA court granted all eight requests, permitting Attorney

Daringer extensions of time until June 30, 2008, October 31, 2008, February

25, 2009, May 1, 2009, October 30, 2009, December 31, 2009, April 4,

2010, and July 30, 2010. Finally, on August 24, 2010, more than five years

                                                                     filed a

Turner/Finley                                              withdraw and no

merit brief.




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ineffective assistance of trial counsel.2

claims of

investigate and call witnesses to provide exculpatory testimony on his

behalf, Attorney Daringer made no effort to contact any of these witnesses

to ascertain what testimony they could provide, nor did he seek the

appointment of an investigator to do this work.    Similarly, with respect to

                                                                            -



rejected

for his lack of cross-examination, but did so without ever contacting trial

counsel to ascertain what his actual strategy was (if any). Attorney Daringer




charitably, minimal at best.




2

                                                t. Finley, 550 A.2d at 215.

                                                    pro se PCRA petition, the
trial transcript, and researched applicable legal theories. No Merit Letter,
8/24/10, at 2. Other than speaking with Wright, Attorney Daringer does not
indicate that he conducted any other factual investigation.


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      After another delay of nearly six months, on February 17, 2011, the

                                          Turner/Finley petition to withdraw



                                                                   y hearing,



issues.   On March 9, 2011, Wright filed a detailed pro se response to the

notice of intent to dismiss, and further claimed that the PCRA court had

erred in granting Attorney

failure to discharge his professional obligations to Wright to investigate his

claims and advocate on his behalf.3 Two days later, on March 11, 2011, the



      On Dece

                                                                           en

banc review.    Typically, when counsel has been permitted to withdraw

pursuant to Turner/Finley, new counsel will not be appointed again and the



                                       Commonwealth v. Rykard, 55 A.3d

1177, 1184 n.2 (Pa. Super. 2012) (quoting Commonwealth v. Maple, 559



3
   As a result, Wright adequately preserved this issue for appeal. See
Traverse [sic] to February 11, 2011 Notice to Dismiss/Deny P.C.R.A. and
                                                                     -2


appointment of new PCRA counsel).


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A.2d 953, 956 (Pa. Super. 1989)). In this case, however, as a result of the

egregious nature of the lack of effort by prior appointed counsel and the

need for Wright to have an advocate on the important issue of the required

standards of performance for PCRA counsel, on October 21, 2013, this Court

issued an order directing the PCRA court to appoint new counsel to represent

Wright during our en banc review.



                                                              re rivals, if not

exceeds, those of prior appointed counsel.     On January 7, 2014, Attorney

                    Anders

pursuant to Turner/Finley and not Anders v. California, 386 U.S. 738

(1967). As the Majority here forthrightly admits, Attorney Deming failed to

satisfy even the most basic requirements for counsel appointed pursuant to

Turner/Finley, including no attempt to raise (much less discuss) the issues

                                                                Anders



and opinions about the case in the most general terms, without any attempt



Chiodo, Hoffert, and                                 Anders



claims or to provide an articulate statement of said claims so that their merit

may be evaluated by this en banc panel.



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      Where appointed PCRA counsel fails to comply with Turner/Finley

requirements, the proper procedure is to remand the case to the PCRA court

for the appointment of new counsel.         See, e.g., Commonwealth v.

Kenney,    732   A.2d    1161,   1165    (Pa.   1999);   Commonwealth        v.

Karanicolas, 836 A.2d 940, 948 (Pa. Super. 2003); Commonwealth v.

Glover, 738 A.2d 460, 465 (Pa. Super. 1999). In this case, however, the

Majority has, without explanation for its failure to have new counsel

appointed, proceeded to decide the appeal on the grounds that all of



      In my view, this failure to appoint new counsel constitutes more than

the failure to follow normal procedure, and instead amounts to a violation of

                                                            eral constitutional

right to counsel for a post conviction collateral proceeding, through the

adoption of Rule 904(C) of the Pennsylvania Rules of Criminal Procedure, our

Supreme Court has determined that an indigent defendant is entitled to

counsel to aid him in the completion of his first petition seeking PCRA relief,

regardless of the merits of his claim.   Commonwealth v. Peterson, 683

A.2d 908, 910 (Pa. Super. 1996).        In Finley, this Court interpreted the

                                 Turner to require that in Pennsylvania, a

                                                  effective representation of

                                        Finley, 550 A.2d at 214 (emphasis




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at which a trial court may determine that a PCRA petitioner's claims are

frivolous or meritless is after the petitioner has been afforded a full and

                                                 Peterson, 683 A.2d at 910

(emphasis added); see also Commonwealth v. Harris, 553 A.2d 428, 433

(Pa. Super. 1989) (same).

     As a result of the repeated failures of all counsel appointed to

represent him, Wright has not been afford any opportunity to have effective

counsel present his claims for proper consideration.    Thus, the M



best be described as an incomplete and undeveloped record. As indicated,



those claims have never been developed or articulated by competent

counsel.




could have changed the outcome of the trial. Majority Memorandum at 11.



provided this explanation. Moreover, even on the current record, I cannot

say that this claim lacks merit.   According to Wright, Freytiz would testify

that he frisked Wright when he entered the nightclub and that Wright was

unarmed.    Freytiz would further testify that Wright did not leave the



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nightclub from the time of his initial entry until the subsequent shooting

(e.g.

evidence that Wright was unarmed while inside the nightclub, and thus did



for challenging the credibility of the testimony of Holmes, the lone

eyewitness    to   the   shooting   called   by   the   Commonwealth     at   trial.



testimony that he saw Wright pull a gun out of his pocket and shoot the

victim.   Testimony that Wright entered the nightclub unarmed would also

have called into question the importance of the testimony of Lynnita



                         eparted for the nightclub      with the clear implication



it is certainly possible that Wright entered the nightclub unarmed but later

obtained a gun from someone while inside, the Commonwealth introduced

no evidence to this effect.




[Wright] does not suggest he could, that he saw [Wright] with or without a




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                                             4
                                                 No Merit Letter, 8/24/10, at



Daringer made his determination regarding lack of prejudice without




represent Wright for nearly three years, Attorney Daringer made no attempt

to contact Freytiz to determine the extent of his knowledge regarding the

events that occurred on the night in question, including his recollection of

                                                                e or difficulty

in having someone else provide Wright with a gun after his entry, and/or



hearing.   Attorney Daringer likewise did not seek the appointment of an
                                                                      5
investigator   t                                                           Cf.



4

that Wright did not give him as much information as possible to investigate
and contact Freytiz and other witnesses. Majority Memorandum at 4.

the names and possible testimony of each witness, but does not indicate
that he requested any other information that was not forthcoming. In
                                 ides no explanation as to how the absence
of any such (unidentified) information precluded Attorney Daringer from
contacting these witnesses.
5
               Anders
practicability standpoint, the Berks County Court of Common Pleas is less

20. In his pro se Brief in Opposition to Anders Brief, Wright astutely asks




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Commonwealth           v.    Brown,    767       A.2d    576       (Pa.   Super.   2001)

(ineffectiveness claims for failure to call witnesses determined to be

meritless after a court-appointed investigator could not locate them).

      The M

ineffective for failing to call bartender Sam Castillo, again merely because



outcome of the trial. Majority Memorandum at 11. In October 2005, Castillo

signed an affidavit that states as follows:

             Before me the subscriber personally appeared
             Samuel Castillo to be known, who being duly sworn

             working    at    tunnel   the   night      of   the    shooting

             minutes before the shooting I was serving [Wright]
             and few people around him he was sitting to left of
             the bar I was serving drinks for someone else when I
             heard to shoots I duck behide the bar running I open
             the basement door and ran out I remember [Wright]



No Merit Letter, Exhibit A, 8/24/10 (without correction of spelling or

punctuation in original). As with Freytiz, Attorney Daringer re




any other individual as the shooter. Id. at 6. Attorney Daringer noted that

while Cast


himself, or to seek the appointment of an investigator to do so for him,
clearly reflects his lack of advocacy in this regard.


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before                                                              after the



moment of the shooting.



any attempt to locate and interview Castillo.     This failure is particularly

significant with respect to Castillo since his affidavit is poorly written,

obviously uncounseled, and raises more questions than it answers. Prior to



defense, one would need considerably more information that what is

contained in the affidavit, including, for example, how far away Wright was

from the precise location of the shooting when he saw him sitting to the left

of the bar; whether he saw Wright get up from his seated location before the

shooting; how soon after hearing the shots did he see Wright running out

the back door; whether he observed any visible signs that Wright had just

been involved in a fistfight; and any other reasons for his belief that Wright

was not the shooter. Absent any such information from Castillo, however,

and despite no apparent efforts to locate and interview him, Attorney

Da

outcome of the case.

      Moreover, as with Freytiz, Attorney Daringer did not attempt to



cannot conclude that this issue lacks any merit.          Attorney Daringer



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essentially concluded that only an eyewitness to the shooting, who can

identify the actual perpetrator of the crime, may offer testimony sufficient to

                                                                    ey Daringer

cited to no authority for this proposition, and I am not aware of any such



Wright, as it places him next to Castillo and away from the location of the

shooting immediately after, or shortly after, Castillo heard the shots.       In

                                                            back door directly



out the front door of the nightclub after the shooting.       N.T., 3/25/03, at

192.



trial counsel was ineffective for failing to call the mother of Felicia Martin to

                                                          -in-chief that she was

at the nightclub and heard shots fired.       N.T., 3/26/03, at 410-14.      She

further testified that she was subsequently interviewed by Investigator

Christopher Santoro, and told him that she did not see who fired the shots.

Id. She said that Investigator Santoro accused her of lying, and threatened

that she should admit that she saw Wright shoot the victim since Wright,

knowing that she had been interviewed by the police, would kill her mother

and little brother and possibly herself (Felicia) as well.            Id.    The

Commonwealth then called Investigator Santoro in rebuttal, at which time



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he testified that while he had conducted an interview with her in an effort to

procure her testimony, he had said nothing to convey threats to her mother

or little brother.    Id. at 414-21.    To the contrary, Investigator Santoro

testified that he did not even know that Felicia Martin had a mother or a

little brother. Id.

      Attorney Daringer concluded that this ineffectiveness claim was

meritless because Felicia Martin testified that she did not see the shooter



No Merit Letter, 8/24/10, at 7.         This response reflects a clear lack of

advocacy by Attorney Daringer, however, as Wright wanted Felicia Ma

mother to testify for an entirely different purpose     namely in sur rebuttal to



Felicia Martin to identify Wright as the shooter with threats against her and

her family mem

testify that Investigator Santoro clearly knew of her existence because she

personally met with him and inquired regarding the substance of the

                                                       on of Order and Notice of



some significance, since he was later involved in acquiring the eyewitness

testimony of                                    approximately a week and a half

prior to the start of trial. N.T., 3/25/03, at 195.




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      Based upon the current state of the record on appeal, I cannot say



prejudicial to support a claim of ineffective assistance of counsel.   I note,

however, that Attorney Daringer, in making no attempt to advocate on



when combined with that of Freytiz, Castillo, and other witnesses, could

cumulatively     result   in

ineffectiveness claims.   Our Supreme Court has repeatedly held that even

when individual claims of ineffective assistance of counsel fail for a lack of

                                                                    ims may

                          Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa.

2011); Commonwealth v. Lesko, 15              A.3d 345, 376 (Pa. 2011);

Commonwealth v. Johnson

instances of deficient performance are found, the assessment of prejudice



      Wright also claims that his trial counsel was ineffective for failure to

thoroughly cross-examine and impeach Holmes, which the trial court

                                                    trial. Order and Notice of




police that he had not seen the shooting and thus could not identify the

shooter; his pending drug charges at the time of his testimony; and that



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Holmes testified that the shooter used his left hand to shoot the gun, while

Wright is right-handed.   Holmes testified that he initially lied to the police

because he was on parole and was thus fearful of the consequences if the




questions on this point, and did not press Holmes on the apparent

inconsistency in his explanation for lying    since he had immediately told the

police that he was at the nightclub and only lied about not knowing the

identity of the shooter. Id. In total, the entire cross-examination of Holmes

covers just over three pages of the trial transcript. See id. at 198-201.

      Attorney Daringer concluded that this ineffectiveness claim lacked

merit because trial counsel had a reasonable strategic basis for his actions:

                                              -examination shows
             that he had a very sound strategy for his questioning
             and limiting the amount of time and information
             needed from Mr. Holmes. Trial counsel appears to
             have recognized that Mr. Holmes was a very
             effective Commonwealth witness and limiting Mr.
                                nce before the jury was an
             important part of the defense strategy.

No Merit Letter, 8/24/10, at 10.




without ever contacting trial counsel to inquire as to what his actual

strategies




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not satisfied merely because appointed counsel (or the PCRA court) is able

to concoct a strategic basis that fits with t

See, e.g., Commonwealth v. Duffey, 855 A.2d 764, 775 (Pa. 2004) (in




ineffectiveness inquiry is always upon counsel, and not upon an alleged

                         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 reasonable

basis prong may the issue be decided without an evidentiary hearing to

                                                Commonwealth v. Williams,

899 A.2d 1060, 1065 (Pa. 2006) (citing Commonwealth v. McGill, 832

A.2d 1014 (Pa. 2003)); see also Commonwealth v. Gribble, 863 A.2d

455, 473-



lacked a reasonable basis for his or

      Nothing in the certified record on appeal establishes what trial

                                                             -examination of

Holmes as he did. In fact, the record does not disclose that counsel even

considered his cross-examination to be limited, that he intentionally declined

to ask Holmes any other questions he considered relevant and useful to




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the Commonwealth.      Accordingly, Attorney Daringe



constitutes mere guesswork and reflects a clear lack of advocacy on behalf

of Wright.

      For these reasons, based upon the failures of all appointed counsel,

most recently Attorney Deming, this case should be remanded for the

appointment of new counsel to represent Wright in connection with his first

PCRA petition.     In my view, the trial court erred in granting Attorney

             Turner/Finley petition to withdraw from representation, and the

Majority here has missed the opportunity to provide clear guidance with

respect to the professional obligations of appointed counsel in PCRA cases.

This Court should not affirm the dismissal of PCRA petitions when appointed

counsel has thoroughly failed to satisfy his or her obligations.

      Accordingly, I dissent.




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