J-S29028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER LEE HARRIS

                            Appellant                No. 1586 WDA 2014


                Appeal from the PCRA Order September 17, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008631-2011


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JUNE 05, 2015

        Appellant, Christopher Lee Harris, appeals from the September 17,

2014 order, denying his first petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful

review, we vacate and remand for further proceedings.

        A prior panel of this Court summarized the relevant factual background

of this case as follows.

                    Harris lived with the victim, Alison Studvant,
              on the 1500 block of Marlboro Avenue in
              Wilkinsburg. N.T., 1/30/12, at 28. On July 1, 2011,
              Harris, his girlfriend, the victim, and the victim’s
              boyfriend, were drinking. Id. at 31. After the
              victim’s boyfriend departed, the victim solicited
              Harris and his girlfriend for a group sexual
              encounter, and allegedly attempted to kiss Harris’s
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*
    Retired Senior Judge assigned to the Superior Court.
J-S29028-15


           girlfriend. Id. at 31-35. Harris, angered by the
           victim’s interaction with his girlfriend, and at the
           sexual solicitation, began arguing with the victim.
           Id. at 38. The victim then left the room, went into
           the kitchen, returned with two knives, and began
           swinging the knives around.          Id.   Harris then
           approached the victim and attempted to disarm her.
           Id. at 40. In the process of attempting to disarm
           the victim, Harris was cut on the arm, cheek and
           under his eye. Id. Harris and the victim continued
           arguing, and when the victim left the room and went
           upstairs, Harris leaned out of the front door and fired
           four shots into the air. Id. at 40-41, 43. The victim
           returned downstairs minutes later, and more arguing
           ensued. Id. The victim continued swinging knives
           and struck Harris in the wrist and face. Id. Harris
           then took several steps backwards, and, although
           aware of his opportunity to leave the premises,
           raised his gun to the victim’s upper torso and fired
           twice, striking her in the left breast. Id. at 93. The
           victim slumped against the wall, and when she
           attempted to regain her footing, Harris shot her in
           the ankle. Id. at 93-94. The victim subsequently
           died from her injuries.

                 Harris was arrested and charged with one
           count of criminal homicide. Harris filed a pre-trial
           motion to suppress his statements to the police,
           which the trial court subsequently denied.          On
           February 1, 2012, at the conclusion of a jury trial,
           Harris was found guilty of third-degree murder. [On
           April 30, 2012, t]he trial court sentenced Harris to
           10 to 20 years in prison, with credit granted for 304
           days of time served. Subsequently, [on May 1,
           2012,] Harris filed a [timely] post-sentence [m]otion
           for a new trial, in which he challenged the sufficiency
           and weight of the evidence supporting his conviction.
           The trial court denied the [m]otion [on August 14,
           2012].

Commonwealth v. Harris, 82 A.3d 1083 (Pa. Super. 2013) (unpublished

memorandum at 1-3), appeal denied, 81 A.3d 75 (Pa. 2013). Appellant filed


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a timely notice of appeal, and this Court affirmed Appellant’s judgment of

sentence on July 30, 2013.       Id.   Our Supreme Court denied Appellant’s

petition for allowance of appeal on December 4, 2013. Id. Appellant did

not seek a writ of certiorari from the United States Supreme Court.

      On May 6, 2014, Appellant filed a timely pro se PCRA petition.

Therein, Appellant alleged that trial counsel provided ineffective assistance

at sentencing, specifically alleging the following.

            [Trial counsel] had no reasonable basis for
            suggesting [to the trial court] that [Appellant’s]
            sentence [should] start above the standard range on
            the guidelines where prior to making that
            suggestion,    [trial]  counsel    stated   facts   of
            [Appellant]’s no prior criminal history[,] no run-in’s
            [sic] with the police[,] leading the [trial] court to
            consider the mitigating circumstances for a possible
            mitigated sentence of seventy-eight (78) months.

Appellant’s PCRA Petition, 5/6/14, at ¶ 22.           The PCRA court appointed

counsel, who on August 5, 2014, filed a petition to withdraw as counsel

along with a “no merit” letter pursuant to Commonwealth v. Turner, 544

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

1988) (en banc), and their progeny. The next day, on August 6, 2014, the

PCRA court entered two orders, one granting PCRA counsel’s petition to

withdraw and another issuing notice of its intent to dismiss Appellant’s

petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907. Appellant filed a timely pro se response on August 18, 2014,

in which he alleged that PCRA counsel was ineffective for misrepresenting his


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ineffectiveness claim to the PCRA court.             Appellant’s Rule 907 Response,

8/18/14, at ¶ 10. On September 17, 2014, the PCRA court entered an order

dismissing Appellant’s PCRA petition without a hearing. On September 25,

2014, Appellant filed a timely pro se notice of appeal.1

       On appeal, Appellant raises the following issue for our review.

               I.    Whether the [PCRA] court erred in dismissing
                     Appellant’s  PCRA    [petition]   without  an
                     evidentiary hearing where Appellant raised an
                     issue of arguable merit concerning sentencing
                     and PCRA counsel’s ineffectiveness[?]

Appellant’s Brief at 4.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA    relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”             Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).               “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”                Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
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1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       The Sixth Amendment to the Federal Constitution provides in relevant

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …

to have the Assistance of Counsel for his defence.”2 U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”      Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.


____________________________________________
2
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”     Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.

Pennsylvania, 135 S. Ct. 50 (2014).

      We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.    We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.     Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted), cert. denied, Roney

v. Pennsylvania, 135 S. Ct. 56 (2014).

             [T]he right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the
             PCRA court’s discretion to decline to hold a hearing if
             the petitioner’s claim is patently frivolous and has no
             support either in the record or other evidence. It is
             the responsibility of the reviewing court on appeal to
             examine each issue raised in the PCRA petition in
             light of the record certified before it in order to
             determine if the PCRA court erred in its
             determination that there were no genuine issues of
             material fact in controversy and in denying relief
             without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”      Roney, supra at 605 (citation

omitted).

      Appellant’s argument in the instant appeal essentially is divided into

two parts.   First, Appellant argues that “PCRA counsel was ineffective for

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misconstruing his sole PCRA issue as a challenge to the discretionary aspects

of sentencing.” Appellant’s Brief at 10. Second, Appellant argues that he is

entitled to an evidentiary hearing on his underlying claim of trial counsel

ineffectiveness.      Id. at 13-14.   We elect to address Appellant’s issues in

reverse order for ease of disposition.

      In his second issue, Appellant argues that trial counsel was ineffective

when she “suggest[ed] a sentence 30-42 months above the minimum

and/or mitigated range sentence.”        Appellant’s Brief at 11.   Instantly, the

parties agree that Appellant’s prior record score was zero, and the offense

gravity score was 14. Commonwealth’s Brief at 20. Furthermore, with the

application of the deadly weapon enhancement, the standard range of the

guidelines was from 90 to 240 months’ imprisonment.             After presenting

various witnesses and mitigating evidence, trial counsel stated the following

to the trial court.

             Your Honor, as you can see from the Pre-sentence
             Report, this is [Appellant’s] first contact with the
             criminal justice system. Never arrested as a juvenile
             or adult prior to this one. He did have a registered
             firearm, license to carry that firearm.

                   This was definitely a tragic event that
             occurred, probably one that could have been
             avoided. I’m sure Your Honor recalls the testimony,
             the testimony from the trial, and the level of
             intoxication that was present in the victim; and that
             certainly doesn’t excuse or explain this all. It’s just
             another fact for the [trial c]ourt to consider.




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                  [Appellant] does have one short statement.
            He would like to show remorse for what happened
            here.

                  For those reasons, Your Honor, his guidelines
            start at 90 months. I would suggest a sentence
            starting at 120 months.

N.T., 4/30/12, at 9-10 (emphasis added). This was the sentence Appellant

received. Id. at 16.

      Our research has not uncovered any cases in which a court has

examined this specific ineffectiveness claim. However, our cases have held

counsel to be ineffective when trial counsel fails to object to an erroneously

higher calculated standard guideline range.     Commonwealth v. Barnes,

593 A.2d 868, 871 (Pa. Super. 1991); Commonwealth v. McMullen, 530

A.2d 450, 453 (Pa. Super. 1987). In our view, it follows, a fortiori, that a

claim of ineffectiveness that trial counsel affirmatively recommended that

the trial court impose a higher sentence than the lower end of the correct

standard range, likewise has arguable merit. One could argue that by doing

so, counsel is affirmatively advocating against her client’s interests, which is

potentially ineffective.

      As noted above, the PCRA court in this case did not hold an evidentiary

hearing to ascertain whether trial counsel had any strategic reason for

recommending a ten-year sentence when the guidelines started at seven

and one-half years. It is not for this Court to speculate on this prong of the

Strickland/Pierce framework in the first instance.       Nor do we have any


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basis upon which to ascertain whether Appellant suffered any prejudice, as

the trial judge who imposed the sentence, and who presided over the PCRA

proceedings, is now retired from the bench.      Importantly, the trial judge

retired before he could author a Rule 1925(a) opinion in this case.

       Given the state of the record, we conclude the best course of action is

to vacate and remand for the evidentiary hearing, so that trial counsel can

testify as to whether there was a reasonable basis for her recommendation.

After said hearing, the PCRA court can make a determination, based on the

full record, as to whether counsel had such a reasonable basis, and whether

Appellant suffered any prejudice.3

       We next address Appellant’s claim of PCRA counsel ineffectiveness, as

it will affect his representation status on remand. As a first-order matter,

we note that this Court has held a PCRA petitioner may preserve a claim of

PCRA counsel ineffectiveness by raising it in response to the PCRA court’s

Rule 907 notice.       Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.

Super. 2012). As Appellant did so here, we may address this argument on

appeal.    See generally Appellant’s Rule 907 Response, 8/18/14, at ¶ 10.

Furthermore, a claim of PCRA counsel ineffectiveness requires Appellant to

satisfy the same three-prong test under the Strickland/Pierce framework.

Id.   Here, Appellant argues that PCRA counsel was ineffective when she
____________________________________________
3
  The Commonwealth notes at the end of its brief that it does not oppose a
remand for an evidentiary hearing. Commonwealth’s Brief at 27-28.



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misconstrued the ineffectiveness of counsel claim to the PCRA court.

Appellant’s Brief at 10, 12.

       Appellant’s pro se PCRA petition only raised one claim, that trial

counsel was ineffective for recommending a higher sentence than the lower

end of the guidelines’ standard range. Appellant’s PCRA Petition, 5/6/14, at

¶¶   20-24.       However,      in   her    Turner/Finley   letter,   PCRA   counsel

characterized Appellant’s claim as one pertaining to trial counsel’s failure to

preserve a discretionary aspects of sentencing issue for his direct appeal.

              [Trial counsel] did file a post-sentence motion and
              direct appeal on [Appellant]’s behalf; she did not,
              however, include a claim that the 120-month
              minimum sentence imposed was excessive. On that
              basis, an argument can be made, albeit futile, that
              counsel rendered ineffective assistance for failing to
              preserve the sentencing issue.

              While counsel’s statement suggesting a 120-month
              minimum sentence as opposed to a 90-month
              minimum term may have been less than prudent,
              the sentencing court exercised its discretion and
              imposed a legal sentence, well within the standard
              range of the Sentencing Guidelines. Accordingly,
              even if a claim of ineffectiveness would have been
              made relative to counsel’s failure to preserve the
              discretionary sentencing issue for consideration, such
              claim would fail.

PCRA Counsel’s Turner/Finley Letter, 8/6/14, at 5.4



____________________________________________
4
  The Turner/Finley letter also discussed a claim regarding the United
States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004). Appellant has not raised that claim in this appeal.



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      We agree with Appellant that PCRA counsel misconstrued his claim to

the PCRA court. On its face, Appellant’s PCRA petition directly accused trial

counsel of being ineffective, as counsel “had no reasonable basis for

suggesting that [Appellant’s] sentence to [sic] start above the standard

range on the guidelines ….”        Appellant’s PCRA Petition, 5/6/14, at ¶ 22.

Appellant had not made any claim that trial counsel was ineffective for not

preserving the issue of whether the sentence recommended by trial counsel

was excessive. PCRA counsel’s Turner/Finley letter does not contain any

substantive discussion of the issue Appellant raised in his PCRA petition

except to call trial counsel’s recommendation “less than prudent[.]”         PCRA

Counsel’s Turner/Finley Letter, 8/6/14, at 5.

      Furthermore, in analyzing the second prong of Strickland, we fail to

see how misinterpreting Appellant’s claim to the PCRA court, in a

Turner/Finley letter or otherwise, furthers Appellant’s interests at all.

Therefore, we must conclude there could be no reasonable basis for PCRA

counsel to have taken this course of action in her Turner/Finley letter.

      Finally, we conclude Appellant was prejudiced by PCRA counsel’s

Turner/Finley letter. In its Rule 907 notice, the only basis the PCRA court

gave for its notice of intent to dismiss without a hearing was PCRA counsel’s

Turner/Finley letter and its own review of the record. PCRA Court’s Rule

907 Notice, 8/6/14, at 1. In its final order dismissing Appellant’s petition,

the   PCRA   court   based   its   decision    to   dismiss   on   PCRA   counsel’s


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Turner/Finley letter, Commonwealth v. Moore, 653 A.2d 24 (Pa. Super.

1995), appeal dismissed, 684 A.2d 122 (Pa. 1996) and Commonwealth v.

Eaddy, 614 A.2d 1203 (Pa. Super. 1992), appeal denied, 626 A.2d 1155

(Pa. 1993). Moore dealt with a claim of ineffectiveness for failure to inform

the defendant that the Board of Probation and Parole could order his

sentences to run consecutively.   Moore, supra at 25.      Eaddy dealt with

non-ineffectiveness claims pertaining to sufficiency of the evidence and the

Speedy Trial Clause of the Sixth Amendment. Eaddy, supra at 1206. The

Commonwealth candidly concedes it does not understand the relevance of

these two cases, and neither do we. Commonwealth’s Brief at 25. Because

the PCRA court relied almost exclusively on PCRA counsel’s Turner/Finley

letter in deciding to dismiss without an evidentiary hearing, we conclude

Appellant was prejudiced by PCRA counsel’s performance.        Therefore, on

remand, the PCRA court shall appoint new counsel for Appellant.

     Based on the foregoing, we conclude that the PCRA court abused its

discretion in dismissing Appellant’s petition without first conducting an

evidentiary hearing.   See Roney, supra.       We further hold that PCRA

counsel rendered ineffective assistance in misconstruing Appellant’s claim of

ineffective assistance to the PCRA court. See Rykard, supra. Accordingly,

the PCRA court’s September 17, 2014 order is vacated, and the case is

remanded for further proceedings, consistent with this memorandum.

     Order vacated. Case remanded. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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