J-S64032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
CHRISTOPHER WILLIS SHENK                :   No. 1952 MDA 2016

             Appeal from the PCRA Order November 1, 2016
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0002192-2007


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                        FILED JANUARY 18, 2018

      Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the November 1, 2016 order granting Christopher Willis

Shenk’s (“Appellee”) petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part

and reverse in part.

      The relevant facts and procedural history of this matter were set forth

by the PCRA court as follows:

            [Appellee] met Leslie Kerstetter (hereinafter “Victim”) as a
      mental health case manager at the Case Management Unit.
      Notes of Testimony of PCRA Evidentiary Hearing, 7/14/16, at 29.
      [Appellee] was assigned to assist Victim, and eventually the two
      became romantically involved. Id. On March 26, 2007, Victim
      communicated to Ashley Kerstetter (hereinafter “Ashley”),
      Victim’s daughter, that [Appellee] was beating her. Notes of
      Testimony of Jury Trial, 10/14/08, Vol. 2, at 22. Ashley
      subsequently went to Victim’s house where she found [Victim]
      unconscious on a bed with bruises on her face[;] [Appellee] was
J-S64032-17


        passed out on the floor. Id. at 27-28. The house was in complete
        disarray and Ashely summoned the police. Id. at 28, 41. Victim
        elected not to go to the hospital. Id. at 27-28. On March 28,
        2007 the Pennsylvania State Police called Ashley to inform her
        that her mother had passed away. Id. at 45. On March 30, 2007,
        a criminal complaint was filed charging [Appellee] with one count
        of Criminal Homicide and one count of tampering with evidence.

                                          ***

               On March 11, 2008 [Appellee], represented by William
        Tully, Esquire (hereinafter “Attorney Tully”), proceeded to a jury
        trial on charges of Criminal Homicide[1] and Tampering with
        Evidence.[2] After a mistrial was declared, [Appellee] proceeded
        to another jury trial on October 17, 2008, where he was found
        guilty of Criminal Homicide. Subsequently, on December 16,
        2008 [Appellee] was sentenced to 17 to 35 years in a State
        Correctional Facility. Attorney Tully’s Post-Sentence Motion for
        Modification of Sentence was denied on January 6, 2009.

              On January 16, 2009, the Public Defender’s Office filed a
        timely Notice of Appeal on behalf of [Appellee]. On November 2,
        2009, the judgment of sentence was affirmed, and on
        September 7, 2010 [Appellee’s] Petition for Allowance of Appeal
        was denied.[3] Thereafter, Attorney Anne Gingrich Cornick
        (hereinafter “Attorney Cornick”) was appointed to represent
        [Appellee].

              On December 29, 2010, [Appellee] filed a timely Petition
        for Post Conviction Collateral Relief. On July 21, 2011, Attorney
        Cornick filed a Supplemental Petition for Relief pursuant to the
        Post Conviction Relief Act claiming ineffective assistance of
        counsel of [Appellee’s] trial counsel, Attorney Tully. The

____________________________________________


1   18 Pa.C.S. § 2501(a).

2   18 Pa.C.S. § 4910(1).

3Commonwealth v. Shenk, 988 A.2d 730, 134 MDA 2009 (Pa. Super. filed
November 2, 2009) (unpublished memorandum), appeal denied, 4 A.3d
1053 (Pa. 2010).



                                           -2-
J-S64032-17


       Supplemental Petition raised            the   following   two   claims   of
       ineffectiveness of counsel:

              (1) whether Attorney Tully was ineffective for failing
              to make a timely objection on the record to the
              introduction     of   photographs       which    were
              inflammatory, prejudicial, and misleading and (2)
              whether Attorney Tully was ineffective for failing to
              file a suppression motion arguing for the exclusion of
              the statement given by [Appellee] to Trooper Lotikis
              during an alleged custodial interrogation.

       Supp. Petition for Relief Pursuant to the Post Conviction Relief
       Act, 07/21/11, p. 4.

             The Commonwealth filed its response on August 2, 2011
       requesting an evidentiary hearing. On June 1, 2015, Attorney
       Cornick’s appointment as [Appellee’s] counsel was revoked and
       [Appellee’s] current PCRA counsel, Attorney Jennifer E. Tobias
       (hereinafter “Attorney Tobias”), was appointed as counsel for
       [Appellee]. A few months later, Attorney Tobias filed a Petition
       Requesting an Evidentiary Hearing on September 25, 2015.
       Ultimately, following numerous continuances and changes of
       counsel for [Appellee], an evidentiary hearing was held on July
       14, 2016 on [Appellee’s] outstanding claims for relief under the
       [PCRA].

PCRA Court Opinion, 11/1/16, at 1-3.

       In an order filed on November 1, 2016, the PCRA court concluded that

Appellee’s trial counsel was ineffective for failing to file a motion to suppress

Appellee’s statement to police, and it ordered a new trial. Order, 11/1/16,

at ¶ 2.4 On November 30, 2016, the Commonwealth filed this timely appeal.

____________________________________________


4 We note that in his PCRA petition, Appellee also averred that trial counsel
was ineffective for failing to object to photographs admitted at trial. The
PCRA court concluded that Appellee failed to establish prejudice with respect
to this claim and denied relief. PCRA Court Opinion, 11/1/16, at 7. Neither
(Footnote Continued Next Page)


                                           -3-
J-S64032-17


Both the Commonwealth and the PCRA court have complied with Pa.R.A.P.

1925.5

      On appeal, the Commonwealth raises the following issues for this

Court’s determination:

      A. WHETHER THE PCRA COURT ERRED IN FINDING TRIAL
      COUNSEL INEFFECTIVE FOR FAILURE TO FILE A SUPPRESSION
      MOTION?

             1. Whether the PCRA Court erred in finding that trial
             counsel was ineffective for failing to file a
             suppression motion where the underpinnings of the
             suppression were meritless?

             2. Whether the PCRA Court erred in finding that trial
             counsel was ineffective for [f]ailing to file a
             suppression motion where trial counsel had an
             articulable and reasonable trial strategy that was the
             basis for his action?

The Commonwealth’s Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011).               The PCRA court’s findings will not be


(Footnote Continued) _______________________

the Commonwealth nor Appellee appealed that determination, and we
summarily affirm it.

5 In response to the Commonwealth’s timely Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, which was filed on January 24, 2017, the
PCRA court filed an order pursuant to Pa.R.A.P. 1925(a) stating that it was
relying on its November 1, 2016 opinion. Order, 2/22/17.



                                          -4-
J-S64032-17


disturbed unless there is no support for the findings in the certified record.

Id.

      When considering an allegation of ineffective assistance of counsel,

counsel 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 conduct; and (3)

petitioner was prejudiced by counsel’s action or omission. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014).        “In order to meet the prejudice

prong of the ineffectiveness standard, a defendant must show that there is a

‘reasonable probability that but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Commonwealth v. Reed,

42 A.3d 314, 319 (Pa. Super. 2012).        A claim of ineffective assistance of

counsel will fail if the petitioner does not meet any one of the three prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). The burden of

proving ineffectiveness rests with the petitioner. Commonwealth v. Rega,

933 A.2d 997, 1018 (Pa. 2007).

      The Commonwealth argues that the PCRA court erred in finding that

Appellee’s trial counsel was ineffective. Specifically, the Commonwealth first

asserts that the PCRA court erred when it concluded that Appellee’s

confession to police was involuntary and that trial counsel was ineffective for

failing to file a suppression motion. On review, we note that:

      the failure to file a suppression motion under some
      circumstances may be evidence of ineffective assistance of

                                     -5-
J-S64032-17


     counsel. However, if the grounds underpinning that motion are
     without merit, counsel will not be deemed ineffective for failing
     to so move. The defendant must establish that there was no
     reasonable basis for not pursuing the suppression claim and that
     if the evidence had been suppressed, there is a reasonable
     probability the verdict would have been more favorable.

Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016).

            When a court is called upon to determine whether a
     confession is voluntary and, hence, admissible at trial, it
     examines the totality of the circumstances surrounding the
     confession to ascertain whether it is the product of an essentially
     free and unconstrained choice by its maker. In making this
     inquiry, a court is not concerned with the issue of whether the
     substance of the confession is true. Rather, a court is
     constrained to examine only whether an individual’s confession
     was the product of coercion, duress, or the use of other
     measures by interrogators deliberately calculated to overcome
     his or her free will.

Commonwealth v. Wright, 14 A.3d 798, 815 (Pa. 2011) (internal citations

and quotation marks omitted).

     The standard for determining whether police have initiated a
     custodial interrogation or an arrest is an objective one, with due
     consideration given to the reasonable impression conveyed to
     the person interrogated rather than the strictly subjective view
     of the troopers or the person being seized. An arrest exists when
     the police intended to take the defendant into custody and the
     defendant was subjected to the actual control and will of the
     police. A person is in custody when he is physically denied his
     freedom of action in any significant way or is placed in a
     situation in which he reasonably believes that his freedom of
     action or movement is restricted by the interrogation.

Commonwealth v. Yandamuri, 159 A.3d 503, 517-518 (Pa. 2017)

(internal citations and quotation marks omitted).

     The United States Supreme Court has held that, before law
     enforcement officers question an individual who has been in
     taken into custody or has been deprived of his freedom in any

                                    -6-
J-S64032-17


        significant way, the officers must first warn the individual that he
        has the right to remain silent, that anything he says can be used
        against him in a court of law, that he has the right to the
        presence of an attorney, and that if he cannot afford an attorney
        one will be appointed. However, these special procedural
        safeguards are required only where a suspect is both taken into
        custody and subjected to interrogation. In determining whether
        a suspect is in custody, two discrete inquiries are essential: (1)
        an examination of the circumstances surrounding the
        interrogation; and (2) a determination of whether, given those
        circumstances, would a reasonable person have felt that he or
        she was at liberty to terminate the interrogation and leave. As
        noted, a person is in custody for Miranda[6] purposes only when
        he is physically denied his freedom of action in any significant
        way or is placed in a situation in which he reasonably believes
        that his freedom of action or movement is restricted by the
        interrogation. Statements not made in response to custodial
        interrogation are classified as gratuitous and not subject to
        suppression for lack of Miranda warnings. Whether an
        encounter is deemed custodial must be determined by examining
        the totality of the circumstances.

Id. at 519-520 (internal citations and quotation marks omitted).

        Factors to be considered in assessing the totality of the
        circumstances include the duration and means of the
        interrogation; the physical and psychological state of the
        accused; the conditions attendant to the detention; the attitude
        of the interrogator; and any and all other factors that could drain
        a person’s ability to withstand suggestion and coercion.

Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002) (internal

citations and quotation marks omitted).

        Here, the PCRA concluded as follows:

        a review of the record shows [Appellee] was questioned by
        police officers on three separate occasions, two at [Appellee’s]
        home and one at the State Police barracks. The third round of
____________________________________________


6   Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -7-
J-S64032-17


     questioning is the most concerning. The circumstances
     surrounding [Appellee’s] questioning should have alerted
     Attorney Tully that [Appellee’s] statements to police officers
     during this third round of questioning were potentially obtained
     illegally. Therefore, this should have provoked Attorney Tully to
     file a suppression motion, especially since these statements
     amounted to confessions of elements of the crime for which
     [Appellee] was charged, which Attorney Tully acknowledged.2

           2  Notes of Testimony of PCRA Evidentiary Hearing,
           7/14/16, p. 13 (“He admitted to elements of the
           killing, yes”).

           With regard to the third round of questioning that
     [Appellee] was subjected to, there were many surrounding
     circumstances that are troubling. Primarily, [Appellee], who
     admittedly went voluntarily, was driven in the back of a police
     car to State Police barracks the evening after Victim’s death.
     Notes of Testimony of PCRA Evidentiary Hearing, 7/14/16, p. 40.
     Being driven to State Police barracks by police officers for
     questioning the night after [Appellee’s] paramour [died] would
     surely call into question [Appellee’s] physical and psychological
     state. Upon arriving at the State Police barracks, [Appellee] was
     placed in an interrogation room with the door left open. Initially,
     only two troopers began questioning [Appellee]; however, a
     third trooper eventually joined [Appellee] and the two other
     troopers in the small interrogation room. Id. at 31. [Appellee]
     stated that he was driven to police barracks “late afternoon,
     early evening” and did not arrive home until “it was dark.” Id. at
     33-34. Overall, [Appellee] stated that he was questioned for “a
     number of hours” with a cup of coffee offered to him by the
     troopers. Id. at 31-32. Even though [Appellee] was given two
     “cigarette breaks”, he was always accompanied by “one of the
     troopers.” Id. at 32. According to [Appellee],

           during the second time that I went out to smoke,
           apparently the fellow who was there went back
           inside and I was left outside by myself for a while.
           And there was some-some, I guess, problem with
           that, that he was supposed to stay out the whole
           time.

     Id. at 32-33.


                                    -8-
J-S64032-17


           The fact that [Appellee] never asked for an attorney or
     was read his Miranda rights does not necessarily mean that this
     was    not   a   custodial   interrogation.    As   explained    in
     Commonwealth v. Nester, 709 A.2d 879, 881 (Pa. 1998), “a
     noncustodial interrogation might possibly in some situations, by
     virtue of some special circumstances, result in an involuntary
     confession.” The fact that [Appellee] was placed in a small room
     with three troopers along with his complimentary cup of coffee,
     questioned for a number of hours, and accompanied by troopers
     during his cigarette breaks, certainly indicates that the duration
     of this interrogation was lengthy and the means of it were
     manipulative.

           Lastly, [Appellee] testified that he had been drinking
     scotch “steadily since Wednesday”, which was the day before his
     interrogation. Notes of Testimony of PCRA Evidentiary Hearing,
     7/14/16, p. 35. When Attorney Tobias asked [Appellee] how
     many drinks an hour or a day he had consumed, [Appellee]
     responded that he “had drank at least one fifth during that time
     and started a second one.” Id. Admittedly, [Appellee] was a
     functioning alcoholic. Id. at 36. Notably, during the interrogation,
     [Appellee] was asked, “are you intoxicated that you can’t
     function?”, to which [Appellee] responded, “I could. While I
     wouldn’t drive right now, I can sit here and talk with you. I can.”

           Given the totality of the circumstances surrounding
     [Appellee’s] interrogation, Attorney Tully, admittedly, should
     have filed a motion to suppress [Appellee’s] statements given
     during this interrogation because, taken as a whole, these
     circumstances indicate that the interrogation was so coercive
     that it deprived [Appellee] of his ability to make a free and
     unconstrained decision to confess.

            Overall, although Attorney Tully’s representation of
     [Appellee] is presumed to be effective, [Appellee] has proven by
     a preponderance of the evidence that Attorney Tully’s decision or
     failure to file a motion to suppress did not offer a substantially
     greater potential for success than trying to counteract
     [Appellee’s] confessions within that statement with expert
     testimony. Moreover, [Appellee] has proven by a preponderance
     of the evidence that but for Attorney Tully’s failure to try to have
     [Appellee’s] confession suppressed, [Appellee] would not have
     been convicted of Criminal Homicide because within that
     confession he “admitted to elements” of Criminal Homicide,

                                    -9-
J-S64032-17


     which aided the Commonwealth in meeting its burden of proof at
     trial. Therefore, [Appellee’s] claim [of] ineffectiveness of counsel
     has merit.

PCRA Court Opinion, 11/1/16, at 10-13.

     After review, we are constrained to conclude that the PCRA court

erred. As the Commonwealth points out, the facts of this case are akin to

those presented in Yandamuri.       The Commonwealth’s Brief at 15.          In

Yandamuri, the defendant was questioned by police in connection with the

disappearance of a baby girl and her grandmother.              The defendant

accompanied detectives to the Upper Merion Police Station in an unmarked

police car. The defendant was questioned in a room with the door closed,

but not locked.     The detectives told the defendant that they were

investigating a kidnapping, that he was free to leave, and he was not under

arrest. The detectives also offered the defendant food and water, and they

informed him that he could use the restroom unaccompanied.                  The

detectives asked the defendant if they could search his cell phone; the

defendant agreed and executed a consent form.

     The defendant provided his first written statement between 3:27 p.m.

and 6:03 p.m., and he denied knowledge of the crime. The defendant was

given an opportunity to review his statement and make corrections.

Approximately thirty minutes later, the defendant made a second written

statement and agreed to provide a DNA sample.        Between 7:37 p.m. and

8:07 p.m., the defendant gave a third non-incriminating written statement.


                                    - 10 -
J-S64032-17


The detectives reminded the defendant that he was free to leave and was

not under arrest, and the defendant never stated that he wanted the

questioning to stop or that he requested an attorney. Between 8:50 p.m.

and 10:47 p.m., the defendant gave a fourth and a fifth written statement to

police. At this point, the detectives saw inconsistencies in the defendant’s

story. The detectives read the defendant his Miranda warnings at 11:03

p.m., and he waived his rights.

      The defendant then wrote a sixth statement between 2:04 a.m. and

2:17 a.m. Detectives asked for consent to search the defendant’s computer,

which he granted.      The detectives confronted the defendant with the

inconsistencies among his statements and those given by his wife. At this

point, one of the detectives placed his hand on a bible and swore on his

parents’ grave that the defendant’s wife was telling the truth. The detective

then showed the defendant a picture of the missing baby, and the defendant

became emotional. At 3:45 a.m., the defendant asked one of the detectives

to call his wife to inform her that he was okay. The detective complied, and

he then told the defendant that it was time to tell the truth.

      The defendant completed his final written statement at 6:34 a.m. In

this statement, he confessed to killing the infant and her grandmother. At

the conclusion of this written statement, the defendant made both a video

and audio-recorded confession that concluded at approximately 7:31 a.m.




                                     - 11 -
J-S64032-17


      After the video statement, the defendant was taken to a holding cell at

the police station where he told a detective for the first time that two white

men forced him to participate in the kidnapping.           The defendant was

charged with two counts of first-degree murder, two counts of second-

degree murder, kidnapping, burglary, robbery, theft by unlawful taking or

disposition, and abuse of a corpse.    Three days after his arraignment, the

defendant contacted the police to tell them that the two white men were the

actual killers. The defendant then filed a motion to suppress his statements

to police and his consents to search.         The trial court held suppression

hearings and denied the defendant’s motion to suppress.          The trial court

concluded that the testimony the detective gave at the suppression hearings

was completely credible, the detective’s questioning methods were not

improper, he provided Miranda warnings, the defendant waived his right to

remain silent, and he did not ask for an attorney.      The trial court further

concluded that throughout questioning, the defendant did not appear to be

overcome by exhaustion, emotion, or any kind of adverse physical effects.

Furthermore, the trial court determined that the detectives did not threaten,

make promises, or use force to obtain a confession; rather, they treated the

defendant with courtesy and respect. The trial court concluded that the

defendant was not placed        in custody until after he completed his

confessions.    At   that   point,   Miranda    warnings   had   already   been

administered, and the defendant had properly waived them.


                                     - 12 -
J-S64032-17


     Following a jury trial, the defendant was found guilty of two counts of

first-degree murder, kidnapping, burglary, robbery, and abuse of corpse,

and was subsequently sentenced to death.            On appeal, the defendant

challenged, inter alia, the denial of his suppression motion.    Our Supreme

Court concluded that “[the defendant] never stated that he wanted to leave,

never asked to stop the questioning, and never refused to answer questions.

… Had [the defendant] made such requests and been refused, an

examination of the totality of the circumstances may have supported a

finding of custodial interrogation.”     Yandamuri, 159 A.3d at 520.       Our

Supreme Court continued:

     a reasonable person would have felt that he was at liberty to
     terminate the interrogation and leave. Accordingly, we hold that
     the record supports the trial court’s factual findings regarding
     the circumstances surrounding Appellant’s interrogation and that
     the trial court was correct in concluding that Appellant was not in
     custody during the challenged time period, thus, his statements
     to the detectives were gratuitous and not subject to suppression
     for lack of Miranda warnings.

Id. at 521.

     With respect to Appellee’s alcohol consumption in the case at bar, we

note that in Commonwealth v. Jones, 322 A.2d 119, 125 (Pa. 1974), the

defendant therein stated that he had been drinking heavily on the morning

of his arrest prior to questioning.     However, witnesses testified that while

there was an odor of alcohol about the defendant, the defendant was not

impaired so that he was unable to answer questions, and he was alert and

responsive.   Id. at 125.    Officers handcuffed the defendant to a chair,

                                       - 13 -
J-S64032-17


informed him of his Miranda rights, and the defendant continued to answer

questions.    Id.    Moreover, the investigating officers administered a

polygraph and engaged in subterfuge fabricating a story that conflicted with

the defendant’s version of events in order to obtain a confession.      Id. at

125-126. On appeal, the Court in Jones held that these factors were not

likely to cause an untrustworthy confession nor were they “so reprehensible

as to invalidate the confession as offensive to basic notions of fairness.” Id.

at 126.

      In the instant case, the duration of police questioning is not specified.

Appellee testified that he was questioned for several hours, beginning in the

late afternoon or early evening, and he did not arrive home until after dark.

N.T., PCRA Hearing, 7/14/16, at 31-34. However, there is no indication or

claim that that the questioning lasted sixteen, or even eight hours, as did

the questioning in Yandamuri and Jones, respectively.         Additionally, the

circumstances here were not as coercive or deceptive as the circumstances

present in Yandamuri and Jones. What is clear from the record, however,

is that Appellee voluntarily went to the State Police barracks, and he was not

under arrest, handcuffed, or locked in a room. Id. at 39-46. While Appellee

testified that he could not recall if the troopers told him he could leave, Id.




                                    - 14 -
J-S64032-17


at 32 and 34,7 Appellee’s trial counsel, Attorney Tully, testified repeatedly

that Appellee was informed specifically that he was not in custody and was

free to leave. Id. at 10, 20, 21. Appellee conceded that the investigating

troopers were cordial and fair, he was provided coffee and cigarette breaks,

he never requested counsel, he answered the troopers’ questions, and he

did not ask to leave.        Id. at 31, 41-46.     While police were aware that

Appellee had consumed alcohol, Appellee informed them that while his use

of alcohol would prevent him from driving, it would not prevent him from

talking to the troopers and answering questions.         Id. at 36.   The record

further reveals that Appellee chose not to leave, and instead he elected to

answer questions, and ultimately incriminated himself.


____________________________________________


7 The notes of testimony reveal the following exchanges between Appellee’s
PCRA counsel and Appellee concerning whether he was told he was free to
leave:

       Q. At any time during that questioning at PSP, did they tell you
       that you were free to leave?

       A. I can’t recall if they did or not.

N.T., PCRA Hearing, 7/14/16, at 31-32.

       Q. And you answered this and I’m sorry: Did they 21 tell you
       you were free to go at any time when you were at PSP?

       A. I can’t recall if they did or not. They may have, I just
       don’t remember.

Id. at 34.



                                          - 15 -
J-S64032-17


       We conclude that the under the totality of the circumstances and

based on the        rationale      in   both   Yandamuri     and   Jones, Appellee’s

statements were voluntary, and neither the methods of the questioning nor

Appellee’s alcohol use required suppression. Thus, based on this authority,

we conclude that had counsel filed a suppression motion, the suppression

court likely would have denied it. Therefore, we cannot agree with the PCRA

court that, but for counsel’s inaction, there is a reasonable probability that

the result of the proceeding would have been different. Reed, 42 A.3d at

319. As such, the PCRA court erred in concluding that Appellee established

the   prejudice    prong     for    proving    ineffective   assistance   of   counsel.8

Accordingly, we are constrained to reverse that portion of the PCRA court’s

order granting Appellee relief and awarding him a new trial. We affirm the

order in all other respects.

       Order affirmed in part and reversed in part. Jurisdiction relinquished.

       Judge Panella joins this Memorandum.

       P.J. Gantman concurs in the result.




____________________________________________


8  Because we conclude that Appellee was unable to establish one of the
prongs necessary to prove ineffective assistance of counsel, his claim fails.
We need not address the Commonwealth’s second issue concerning whether
counsel had a reasonable basis for his actions. Simpson, 66 A.3d at 260.



                                           - 16 -
J-S64032-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/18/2018




                          - 17 -
