J-S38004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SHAINE ARCH MCCARTY

                            Appellant              No. 117 MDA 2015


               Appeal from the PCRA Order of December 19, 2014
                 In the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0007566-2010


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 17, 2015

       Shaine Arch McCarty appeals the December 19, 2014 order dismissing

his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. Appointed appellate counsel for McCarty, Jennilee M. Kemling,

Esq., has filed with this Court a Turner/Finley1 brief and a petition to

withdraw as counsel. Because we disagree with Attorney Kemling that there

are no meritorious issues to present on appeal, we deny her petition to

withdraw, and we remand for the preparation of an advocate’s brief on

McCarty’s behalf.



____________________________________________


1
    See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S38004-15



      On December 5, 2010, McCarty was involved in an altercation with

Samantha Bowling and others at a gathering of friends and acquaintances at

two apartments in the same building. Ms. Bowling and others testified that

the fight arose after McCarty entered an apartment, insulted them profanely,

then left.   Ms. Bowling and another witness testified that they followed

McCarty out into a common area behind the courtyard to confront him.

Ms. Bowling maintained that her demeanor was civil, and that, when

McCarty turned his back on her, she merely touched his shoulder to get his

attention. He responded by grabbing her by the hair and slamming her face

into a nearby structural pillar or pole several times, inflicting a gash to her

head that required eight stitches to close, breaking her nose, and causing

her severe discomfort in her chest that required her to return to the hospital

two days after her initial treatment.

      Although the defense introduced no testimony or evidence, trial

counsel Ronald J. Gross, Esq., argued to the jury in closing that McCarty

acted in self-defense.   Attorney Gross acknowledged that McCarty in fact

insulted the women, and that he spit on Ms. Bowling’s friend outside the

apartment when she accosted him.          But he argued that when McCarty

turned his back on the women, Ms. Bowling jumped on his back, struck him,

and bit him several times on the head. McCarty then threw Ms. Bowling off

his back and she struck her face on the pole.          Photographs taken by

responding officers at the scene confirmed that McCarty had sustained what

appeared to be bite wounds to his head.

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      McCarty was arrested and released on bail the same day that the

altercation occurred.      Ms. Bowling also was cited for harassment under 18

Pa.C.S. § 2709(a)(1) (“A person commits the crime of harassment when,

with intent to harass, annoy or alarm another, the person . . . strikes,

shoves, kicks or otherwise subjects the other person to physical contact, or

attempts or threatens to do the same.”), a summary offense to which she

admitted pleading guilty.       However, she suggested that she did so as a

convenience, maintaining that she had not jumped on McCarty’s back or bit

his head.    See Notes of Trial Testimony (“N.T.T.”), 2/6-7/2012, at 150

(testifying that she pleaded guilty because the arresting officer told her that

“[she] had to,” but denying that she had jumped on McCarty’s back or bit his

head).

      On February 7, 2012, a jury found McCarty guilty of aggravated

assault,    18   Pa.C.S.    §   2702(a)(1),   and   simple   assault,   18 Pa.C.S.

§ 2701(a)(1).     The trial court from the bench found McCarty guilty of

summary harassment, 18 Pa.C.S. § 2709(a)(1). On April 16, 2012, the trial

court sentenced McCarty to seven to fourteen years’ imprisonment for

aggravated assault, with no further penalty imposed for simple assault. For

McCarty’s harassment conviction, the court imposed an additional ninety-day

sentence to run concurrently with his sentence for aggravated assault.

McCarty timely appealed, and this Court affirmed his judgment of sentence

on April 25, 2013.         Commonwealth v. McCarty, No.          1626 MDA (Pa.

Super. 2012) (unpublished memorandum).

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      On August 21, 2013, McCarty filed a pro se PCRA petition. On August

29, 2013, the PCRA court appointed Joshua E. Neiderhiser, Esq., as counsel

for McCarty. On November 8, 2013, Attorney Neiderhiser filed an amended

PCRA petition raising various claims of constitutionally ineffective assistance

of counsel (“IAC”). Specifically, McCarty contended that Attorney Gross was

ineffective for failing to adduce the testimony of Brandy Lehr (née

Dellapenna), Polytimi Stump (née Skouras), Terry McCarty, and Justin

Walters.   He also alleged that Attorney Gross was ineffective for failing to

convey to McCarty a favorable plea bargain offered by the Commonwealth

and for suggesting to McCarty that, if McCarty tendered an additional

payment to Attorney Gross, Attorney Gross could keep him out of prison.

      Pursuant to Pa.R.Crim.P. 908, the PCRA court held an evidentiary

hearing on May 23, 2014, at which Attorney Gross, Mrs. Lehr, Mrs. Stump,

and Terry McCarty testified. Because Mr. Walters died before the hearing,

the court admitted a notarized statement by Mr. Walters detailing the

substance of the testimony that he would have provided at trial, had he

been called.

      On December 19, 2014, the PCRA court denied McCarty’s PCRA

petition in an opinion and order, reasoning that trial counsel was not

ineffective for failing to call the above-mentioned witnesses to the events

underlying     McCarty’s    convictions.      PCRA   Court   Opinion   (“P.C.O.”),

12/19/2014, at 2-7.        Specifically, the PCRA court found that the proposed

testimony of Mrs. Lehr, Mrs. Stump, and Terry McCarty would not have

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provided the jury with any additional information.     Thus, Attorney Gross’

decision not to call these witnesses was not detrimental to McCarty’s

interest.   Id. at 2-5.   The PCRA court, contradicting its in-court ruling

without explanation, found that it could not consider Mr. Walters’ notarized

statement because the statement was hearsay that was not subject to any

of the exceptions set forth in Pa.R.E. 804(b) (“Exceptions to the Rule Against

Hearsay—When the Declarant is Unavailable as a Witness”). Id. Because

the PCRA court concluded that it could not consider the statement that it

deemed inadmissible, and because Mr. Walters obviously could not testify,

the court determined that Attorney Gross was not ineffective for failing to

call Walters as a witness. Id.

      On January 13, 2015, McCarty timely filed a notice of appeal from the

dismissal of his PCRA petition.     On January 15, 2015, the PCRA court

directed McCarty to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).      On January 30, 2015, appointed

appellate counsel, Attorney Kemling, entered her appearance on behalf of

McCarty.    McCarty filed his concise statement on February 4, 2015.      The

next day, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a),

referring this Court to its December 19, 2014 opinion and order. On March

12, 2015, Attorney Kemling filed a Turner/Finley brief and a petition to

withdraw as counsel with this Court, in which she averred that she could

identify no meritorious issues to pursue on appeal.




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      We first consider whether counsel has complied with the technical

requirements that our courts have established in order for appointed counsel

to withdraw pursuant to Turner and Finley.

      Counsel petitioning to withdraw from PCRA representation must
      proceed [under Turner/Finley and] must review the case
      zealously. Turner/Finley counsel must then submit a “no-
      merit” letter to the [PCRA] court, or brief on appeal to this Court,
      detailing the nature and extent of counsel’s diligent review of the
      case, listing the issues [that] petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed
      pro se or by new counsel.

                                    ****

      Where counsel submits a petition and no-merit letter that satisfy
      the technical demands of Turner/Finley, the court—[PCRA]
      court or this Court—must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007); Doty’s

textual modifications omitted for clarity).

      In her brief, Attorney Kemling sets forth the issues of which McCarty

seeks review. See Brief for McCarty at 4. She also has set forth a thorough

history of McCarty’s case. Id. at 5-9. Attorney Kemling has reviewed the

applicable statutes, case law, and rules of procedure, id. at 10-19; she has

filed a petition for leave to withdraw as counsel; and she has explained why

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she believes that McCarty has no meritorious issues to pursue on appeal.

Id. at 14. Attached to Attorney Kemling’s petition is a copy of the letter she

sent to McCarty, which advised him of her intent to seek to withdraw as

counsel; apprised McCarty of his right to retain new counsel or to proceed

pro se; and provided McCarty with a copy of the Tuner/Finley brief that she

filed   in   this   Court.    Consequently,    counsel    has   complied     with

Turner/Finley’s technical requirements.

        Before deciding counsel’s motion to withdraw, however, we also must

independently review the record, beginning with the claims raised by

McCarty.     Attorney Kemling has identified three potential issues for our

review:


        1. Whether the [PCRA] court erred in dismissing [McCarty’s]
           PCRA petition where trial counsel failed to call Brandy Lehr,
           Terry McCarty, Polytimi Stump, and Justin Walters as defense
           witnesses at trial?

        2. Whether the [PCRA] court erred in dismissing [McCarty’s]
           PCRA petition where trial counsel failed to advise [McCarty] of
           all plea offers prior to going to trial?

        3. Whether the [PCRA] court erred in dismissing [McCarty’s]
           PCRA petition where trial counsel told [McCarty] he would
           keep [McCarty] out of jail if he was paid?

Brief for McCarty at 4 (footnote omitted).

        In reviewing a PCRA court’s order denying relief, we must assess

whether the determination of the PCRA court is supported by the evidence of

the record and is free of legal error. The PCRA court’s findings will not be



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

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).

      McCarty’s issues all implicate IAC.

      [A] PCRA petitioner will be granted relief [for IAC] only when he
      proves, by a preponderance of the evidence, that his conviction
      or sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and
      to rebut that presumption, the PCRA petitioner must
      demonstrate that counsel’s performance was deficient and that
      such deficiency prejudiced him.” Commonwealth v. Colavita,
      993 A.2d 874, 886 (Pa. 2010) (citing Strickland v.
      Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we
      have refined the Strickland performance and prejudice test into
      a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d
      203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the
      petitioner must show that: (1) his underlying claim is of arguable
      merit; (2) counsel had no reasonable basis for his action or
      inaction; and (3) the petitioner suffered actual prejudice as a
      result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations

modified).      To demonstrate prejudice, the petitioner must establish “that

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

errors,   the    result   of   the   proceeding   would   have   been   different.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). A petitioner’s

failure to satisfy any one element of the test will result in the rejection of his

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Thus, if

an appellant is unable to demonstrate prejudice, we need not demonstrate




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the other two elements. Commonwealth v. Albrecht, 720 A.2d 693, 701

(Pa. 1998).

      In his first issue, McCarty claims that trial counsel was ineffective for

failing to call Mrs. Lehr, Terry McCarty, Mrs. Stump, and Mr. Walters to

testify at trial. Brief for McCarty at 12. In order to demonstrate that trial

counsel was ineffective in failing to present the testimony of a witness, the

petitioner must establish the following factors:

      1) [T]he witness existed; 2) the witness was available to testify
      for the defense; 3) counsel knew of, or should have known of,
      the existence of the witness; 4) the witness was willing to testify
      for the defense; and 5) the absence of the testimony of the
      witness was so prejudicial as to have denied him a fair trial.

Commonwealth v. Smith, 675 A.2d 1221, 1230 (Pa. 1996).

      Mrs. Lehr, Terry McCarty, and Mrs. Stump all testified at the PCRA

hearing. Notes of P.C.R.A. Testimony (“N.P.T.”), 5/23/2014, at 25, 38, 47.

Lehr testified that she was willing and available to testify at trial, and that

Attorney Gross interviewed her prior to McCarty’s trial.    Id. at 26-27. On

the night in question and at the time of the PCRA hearing, she was McCarty’s

girlfriend. Id. at 25-26. Although she did not witness the fight itself, she

would have testified that, as McCarty left the apartment, he was pursued “by

one girl screaming, do we got a fuckin problem.        Exactly those words.”

Id. at 28.    She later testified that the women in question “went flying out

the door after him.” Id. at 32. In short, her intended testimony would have

contradicted that of Ms. Bowling and Ms. Bowling’s friend to the effect that



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their interaction with McCarty had been civil and would have been consistent

with the defense’s theory of the case.       See N.T.T. at 184 (noting that at

least two prosecution witnesses attest to yelling, while Ms. Bowling and her

friend “say that they approached [McCarty] outside.      They weren’t yelling,

they were just inquiring as to why would you use such foul language, that’s

rude, that’s not nice”).

      Terry McCarty, McCarty’s brother, testified at the PCRA hearing that he

was willing and available to testify at trial, and that Attorney Gross

interviewed him prior to McCarty’s trial.       N.P.T. at 39-40.   Mr. McCarty

testified that he witnessed a person jump onto McCarty’s back and another

person run past him shortly after that. Id. However, Mr. McCarty did not

witness more of the altercation, because he was busy subduing the second

person who ran past him. Id. at 45-46. Thus, Terry McCarty, too, testified

to observations consistent with the defense’s account of the case and at

odds with aspects of Ms. Bowling’s and other prosecution witnesses’

testimony.

      Mrs. Stump testified at the PCRA hearing that she was willing and

available to testify at trial, and that Attorney Gross interviewed her prior to

McCarty’s trial. Id. at 48-49. Stump also testified that “she saw somebody

on [McCarty’s] back from behind and they were beating him, hitting him in

the head. And then I just saw him take who[m]ever it was and just flicked

them off into I think there was—it looked like—it was either wood like a deck




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pole.”     Id. at 50.   This testimony also was as consistent with McCarty’s

theory of the case as the victim’s and her friends’ account of events.

         During the PCRA hearing, Attorney Gross testified that McCarty

provided him with a list of potential witnesses nearly a year before trial. Id.

at 72. Mr. Walters’ name and contact information were included on this list.

Id.   However, at no point did Attorney Gross contact Walters.       Id.   With

regard to the other named witnesses, Attorney Gross testified that he at

least spoke with them briefly, which was corroborated by the potential

witnesses in question. Id. at 67. He set forth various reasons why he opted

not to have them testify. See id. at 67-68 (indicating that Terry McCarty

had seen very little of the relevant events, and that his account was

“essentially neutral,” and “wasn’t going to completely help disprove what the

Commonwealth [was] saying”), 68-70 (asserting that Mrs. Lehr corroborated

Ms. Bowlings’ and her friends’ “aggressiveness” and “yelling”; acknowledging

that, if she had told the story at trial that she told during the PCRA hearing,

he would have “called her in a heartbeat”; but suggesting, somewhat

equivocally, that he did not recall her providing such an account at the

time), 70 (testifying that when he spoke to Mrs. Stump she told him that she

was “very intoxicated and she did not see anything”).

         Mr. Walters died before the hearing. Id. at 18. However, before he

died, Walters’ prepared a notarized statement.        Id.   During the PCRA




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hearing, the PCRA court admitted Walters’ written statement. Id. at 59-60.2

Walters’ statement detailed his account of the underlying events related to

McCarty’s conviction. Mr. Walters indicated that he “was ready to testify at

all court dates.     [He] was never contacted by either side in the criminal

proceedings.” Walters’ Statement, 7/23/2013. Further, Walters’ statement

set forth facts, which would have supported a jury finding that Ms. Bowling

struck the first blow and that McCarty acted in self-defense.3     Id.     Upon

learning the content of Walters’ statement, Attorney Gross offered no excuse

for his failure to contact Walters:

       Q:   What about Mr. Walters, did you ever speak to Mr.
       Walters?

       [ATTORNEY GROSS]:            No, I did not. I wish that if he was
       going to say what he allegedly said, that would have been great.
       I just can’t explain why I would not have spoken with him or
       have some arrangement for him to meet me to speak.
____________________________________________


2
      As set forth below, the PCRA court effectively disavowed doing so in
his Rule 1925(a) opinion, despite clearly deciding at the hearing that the
statement was admissible. Compare P.C.O. at 6 with N.P.T. at 60.
3
       Walters account corroborated McCarty’s claim of self-defense.

       I saw [Ms. Bowling] on [McCarty’s] back biting his head. I saw
       [McCarty] reach his hands up, lean down and pull her forward
       over his head off of him.           When [McCarty] did that,
       [Ms. Bowling’s] head hit the porch beam in front of them.
       [Ms. Bowling] fell to the ground and [McCarty] backed up.
       [Ms. Bowling] was knocked unconscious at [this] point. I picked
       her up and carried her into the house.

Mr. Walters’ Statement, 7/23/2013.




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N.P.T., 5/23/2014, at 72-73.

     In summation, Attorney Gross acknowledged that, if the witnesses in

question had testified at trial, their testimony would have contradicted the

Commonwealth’s witnesses’ accounts of Ms. Bowling’s demeanor toward

McCarty and whether Ms. Bowling jumped on his back and bit him.              He

further opined that, if the jury had credited their testimony, the testimony

would have offered the jury a competing account of the events underlying

the case. Id. (“If that is believed and [sic] absolutely that would have been

different than what I—that would have been different than what the jury

heard.”).

     In     her   Turner/Finley   brief,      Attorney   Kemling   relies   upon

Commonwealth v. Priovolos, 715 A.2d 420 (Pa. 1998), to support her

conclusion that McCarty cannot show that the omission of Mr. Walters’ and

the other witnesses’ testimony was prejudicial or lacking a reasonable basis.

Brief for McCarty at 13-14.    In Priovolos, the appellant argued that his

PCRA counsel was ineffective in failing to present testimony of several

witnesses at his PCRA evidentiary hearing. 715 A.2d at 421. However, the

appellant did not substantiate the alleged substance of the witnesses’

proposed testimony because the witnesses were either deceased or

unavailable at the time of the hearing, and no record existed of their

potential testimony.   Id. at 423.     Accordingly, the appellant could only

speculate regarding the witnesses’ possible testimony. Id. The Priovolos

Court found “nothing from the record that indicated that the absence of

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testimony from any of these witnesses, either from the PCRA hearing or

trial, worked prejudice upon [the appellant].” Id. Consequently, the Court

found that counsel was not ineffective. Id.

       IAC claims must be based upon evidence, not sheer conjecture.

Commonwealth v. Bullock, 415 A.2d 1240, 1241 (Pa. Super. 1979) (per

curiam).      Further, trial counsel’s failure to gather evidence on the

petitioner’s behalf rises to IAC only if the petitioner substantiates that the

evidence was available to counsel at trial.         Commonwealth v. Stinnett,

514 A.2d 154, 157 (Pa. Super. 1986).               In the instant matter, McCarty

provided tangible evidence of Walters’ proposed testimony through Walters’

written statement, which the PCRA court admitted.4            As well, three other

potential but uncalled witnesses testified at the PCRA hearing that, had they

been called at trial, they would have provided an account of events that

arguably could have swayed the jury in McCarty’s favor.               Accordingly,

counsel’s reliance upon Priovolos is questionable at best: In Priovolos no

____________________________________________


4
      As noted, the PCRA court now maintains that Mr. Walters’ written
statement is inadmissible hearsay. P.C.O. at 5-6. However, during the
PCRA hearing the court admitted Mr. Walters’ statement:

       [I]t occurs to me it’s admissible. The statement is admissible.
       It’s proof that he made it, which . . . is that the statement is
       simply proof that there is somebody out there that made the
       statement that was not called as a witness.

N.P.T. at 58-60.




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such statements or testimony were offered to support the petitioner’s claims

regarding the proposed witnesses’ availability or the substance of the

testimony they might have offered.

      Commonwealth v. Thomas, 908 A.2d 351 (Pa. Super. 2006), by

contrast, involved more analogous circumstances.            In Thomas, the

petitioner argued that the PCRA court erred by failing to admit a written

statement of an unavailable witness to support the claim that his trial

counsel was ineffective by failing to present that witness at trial. Id. at 353.

The witness provided appellant’s PCRA counsel with a written statement,

under penalty of perjury, regarding her proposed testimony, but died before

the hearing. Id. at 353-54. The PCRA court excluded the statement in part

because the witness did not record it “before an officer authorized to

administer oaths.” Id. at 354. In the instant matter, however, Mr. Walters

did precisely that.

      In this case, the PCRA court admitted Walters’ written statement at

the evidentiary hearing, which provided evidence of Walters’ willingness and

ability to testify at trial. N.P.T., 5/23/2014, at 59-60. Furthermore, that the

statement was notarized distinguishes Thomas, just as the mere existence

of the notarized statement and the testimony at the PCRA hearing of the

other witnesses distinguishes Priovolos. Thus, we cannot conclude, based

upon this record and without the benefit of advocacy, that Mr. Walters’




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statement could not have been admitted.5 Furthermore, taken collectively,

and as Attorney Gross acknowledged, the potential witnesses’ testimony,

with or without Mr. Walters’ statement, corroborated to varying degrees the

defense’s alternative account of the altercation. Attorney Gross’ testimony

also was equivocal as to whether he fully considered the potential value of

each of these witnesses’ testimony at the time or had a reasonable basis not

to call each witness at trial.       Even if any one of these witness’ accounts

might not have prejudiced the defense, the PCRA court may consider the

cumulative prejudicial effect of failing to call them all. See Commonwealth

v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (“When the failure of individual

claims is grounded in lack of prejudice, then the cumulative prejudice from

those individual claims may properly be assessed.”).

       Under the instant circumstances, we respectfully disagree with

Attorney Kemling        that Attorney Gross’ failures even to      speak with

Mr. Walters and to call one or more of the testifying witnesses at trial and to

do so does not establish a claim sufficiently colorable to warrant advocacy.

We find that there are arguments that Mr. Walters’ written statement either

was admitted or could have been admitted and that, even without
____________________________________________


5
      The parties and the court appear to agree that, if the statement is
actually hearsay, it is inadmissible because it is subject to none of the
exceptions found in Pa.R.E. 804. However, Attorney Neiderhiser maintained
during the PCRA hearing that the statement was not hearsay in the first
instance, and the PCRA court appeared to agree following extensive
discussion.



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Mr. Walters’ testimony, the sum of the other witnesses’ proposed testimony

might have created a reasonable probability of a different outcome at trial.

While we express no opinion regarding the likelihood that such arguments

should have prevailed before the PCRA court or will prevail before this Court,

at this juncture it is our duty only to assess independently whether the

record would support an advocate’s brief in this matter. On the above basis

alone, we find that it does.

      In his second issue, McCarty claims that trial counsel was ineffective

for failing to advise him of all plea offers prior to going to trial.   Brief for

McCarty at 15. In order to show that trial counsel was ineffective for failing

to advise him of all plea offers prior to going to trial, McCarty must establish

the following criteria:

      (1) [A]n offer for a plea was made; (2) trial counsel failed to
      inform him of such offer; (3) trial counsel had no reasonable
      basis for failing to inform him of the plea offer; and (4) he was
      prejudiced thereby.

Commonwealth v. Chazin, 873 A.2d 732, 735 (Pa. Super. 2005) (quoting

Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa. 1988)); cf. Missouri

v. Frye, 132 S.Ct. 1399, 1408 (U.S. 2012) (holding that defense counsel

has a duty to convey and explain all plea offers extended by the

prosecution); Lafler v. Cooper, 132 S.Ct. 1376, 1384-85 (U.S. 2012)

(requiring the petitioner to show that, “but for the ineffective advice of

counsel[,] there is a reasonable probability that the plea offer would have

been presented to the court . . ., that the court would have accepted its


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terms, and that the conviction or sentence, or both, under the offer’s terms

would have been less severe than under the judgment and sentence that in

fact were imposed”).

       At the PCRA evidentiary hearing, Attorney Gross testified that he

advised McCarty to accept the Commonwealth’s sole plea offer of five to ten

years’ imprisonment. N.T., 5/23/2014, at 64. McCarty failed to accept that

plea offer. Id. McCarty testified that he believed that the Commonwealth

was willing to offer him a lesser plea of two to four years’ imprisonment. Id.

at 12. Attorney Gross acknowledged that he attempted to negotiate a lesser

plea   bargain   prior   to   trial   but    testified   unequivocally   that   he   was

unsuccessful in his negotiations and that there had never been an offer of a

negotiated plea involving only two to four years’ imprisonment on the table.

Id. at 64-65.

       In his third issue, McCarty claims that trial counsel was ineffective for

telling McCarty that he would keep him out of jail if McCarty paid him. Brief

for McCarty at 17. The PCRA court maintains that issues regarding attorney

payment are not cognizable under the PCRA.                P.C.O. at 8.    Although not

thoroughly developed, McCarty appears to contend that Attorney Gross’

communication to him affected his decisions to reject the plea offer.                See

N.P.T. at 14 (“If he would have told me, that’s the only deal, [i.e., a deal for

a two to four-year sentence,] . . . yeah, I probably would have took it.”).

       It is within counsel’s professional discretion to choose which issues to

pursue on appeal, and we do not intend to impose upon or limit that

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discretion. However, we are not persuaded that McCarty’s claims so lacked

merit as to warrant a Turner/Finley brief rather than one presenting the

vigorous advocacy on McCarty’s behalf to which he is entitled.        When this

Court concludes that claims available to a PCRA petitioner have sufficient

merit to warrant advocacy, we must deny counsel’s request to withdraw and

remand to allow counsel to file an advocate’s brief.         See Wrecks, 931

A.2d 721 (Pa. Super. 2007). We do so now.

       We direct Attorney Kemling to file an advocate’s brief within thirty

days of the date of this memorandum.6              The Commonwealth shall have

thirty days from the date that Attorney Kemling files that brief to submit its

own brief in rebuttal. Thereafter, Attorney Kemling will have fifteen days to

file a reply brief, should she determine that it is appropriate to do so.

       Petition to withdraw as counsel denied. Case remanded. Jurisdiction

retained.




____________________________________________


6
      In so doing, we do not intend to restrict Attorney Kemling’s discretion
to pursue or abandon McCarty’s second and third issues on appeal. Because
we direct Attorney Kemling to prepare an advocate’s brief, we leave it to her
to reassess whether these claims have sufficient potential merit to warrant
advocacy.



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