J-S88023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
         Appellee                           :
                                            :
          v.                                :
                                            :
JOHN BRADLEY,                               :
                                            :
         Appellant                          :    No. 3045 EDA 2015


              Appeal from the PCRA Order September 18, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001873-2008

BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 24, 2017

      I would vacate the PCRA court’s order and remand for an evidentiary

hearing. Accordingly, I respectfully dissent.

      Appellant’s ineffectiveness claim has clear arguable merit. “[E]vidence

of prior convictions can only be introduced for the purpose of impeaching the

credibility of a witness if the conviction was for an offense involving

dishonesty or false statement.” Commonwealth v. Randall, 528 A.2d

1326 (Pa. 1987) (emphasis added).        Our Supreme Court has held that

“convictions of drug trafficking and firearms offenses did not involve

dishonesty or false statements and therefore would not have been

admissible to impeach [an appellant’s] credibility.”    Commonwealth v.

Nieves, 746 A.2d 1102, 1105 (Pa. 2000). The record reveals no other legal

basis for the admission of this evidence. Thus, because Appellant’s previous



*Retired Senior Judge assigned to the Superior Court.
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convictions for drug possession and distribution did not constitute crimen

falsi and were otherwise inadmissible at trial, counsel’s action served only to

prejudice Appellant by opening the door to cross-examination as to

Appellant’s history of drug dealing, which allowed the prosecutor to paint

Appellant as a violent drug dealer and undermine his alibi defense.

      In disposing of this issue, the Majority concludes that Appellant was

unable to demonstrate prejudice such that his conviction must be reversed

because of the “overwhelming” evidence presented against him at trial.

Majority Memorandum at 5-6. The Majority is correct that an ineffectiveness

claim may be denied if a petitioner fails to meet any of the three

components of the requisite analysis. Commonwealth v. Michaud, 70 A.3d

862, 867 (Pa. Super. 2013) (citations omitted).        However, “[w]here an

appellant presents a claim of arguable merit, and there has been no

evidentiary hearing in the trial court, we ordinarily remand to permit the

parties to develop the record. Commonwealth v. Lebo, 713 A.2d 1158,

1163 (Pa. Super. 1998).     Only where “the record demonstrates that the

claim lacks arguable merit, or that no prejudice resulted,” will we determine

that no evidentiary hearing is needed. Id.       “To demonstrate prejudice,

appellant must show there is a reasonable probability that, but for counsel's

error, the outcome of the proceeding would have been different.” Michaud,

70 A.3d 867. I believe Appellant has met this burden such that a hearing is

necessary.



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     Here, there was a lack of physical evidence that tied Appellant to the

crime.   Without evidence of Appellant’s prior convictions, drug dealing

activities and the insinuation that Appellant must have carried a gun for

protection, the jury would have been left to weigh the testimony of three

eyewitnesses, a juvenile, a probation violator with motive to protect his own

interests, and a “crack head,” N.T., 9/17/2009, at 59, who was unable to

make a positive in-court identification, against Appellant’s compelling alibi

testimony, which was supported by both his girlfriend and her friend.      A

close case for any jury, it is reasonable to believe that defense counsel’s

improper questioning regarding Appellant’s prior record swayed the outcome

of the proceeding such that an evidentiary hearing was necessary to

determine counsel’s ineffectiveness. Accordingly, I would vacate the order

dismissing Appellant’s petition and remand for an evidentiary hearing.




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