J.S36024-14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA     IN THE SUPERIOR COURT OF
                                       PENNSYLVANIA
                  Appellee

                      v.

DAVID REDMOND

                           Appellant                   No. 2855 EDA 2013


                Appeal from the PCRA Order September 30, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006047-2010


BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.*

CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.

:FILED AUGUST 07, 2014

        I agree with the majority that Appellant was not entitled to relief based



about being sexually assaulted.        In my view, however, the pleadings and



the record, raise genuine issues of fact r

counsel was ineffective for failing to call Karlesio Davenport at trial.

Specifically, there remain issues of fact as to whether Davenport was awake

or asleep at the time of the assault, whether he was able to observe the

assault perpetrated by Appellant and his codefendant, and whether he could



*
    Former Justice specially assigned to the Superior Court.
J. S53041/13

credibly testify that Appellant and codefendant did not sexually assault the



                            xculpatory testimony was implausible and that




the record was not appropriate.   See Pa.R.Crim.P. 908(A)(2) (stating that

                                                                 -conviction




PCRA cour




resulted in prejudice.




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