J-S08005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    KHALIL BURNETT,

                             Appellant                  No. 2662 EDA 2017


              Appeal from the PCRA Order Entered August 11, 2017
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-46-CR-0003222-2009


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 03, 2019

        Appellant, Khalil Burnett, appeals from the order denying his timely

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we vacate the PCRA court’s order

and remand for further proceedings consistent with this memorandum.

        During Appellant’s direct appeal, we summarized the facts adduced at

his trial as follows:

               Ms. Rosemarie Schrader testified that she has resided on
        the 7300 block of Garman Street in the City of Philadelphia all of
        her life. She described her home as being in the middle of a typical
        residential block of row homes with an elevated open front porch.
        On the evening of October 4, 2008, while she was sitting alone on
        her porch going through her mail between the hours of 8:00 and
        9:00 p.m., she heard “a cluster [of] what I thought was
        fireworks.” She looked up at the sound and saw two “kids” in
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     white T-shirts, coming from her left, running down the middle of
     Garman Street, away from the direction of the “fireworks,” and
     turn right onto Berbro Street at the end of the block. She then
     looked in the opposite direction to where she had heard the noises
     coming from. She saw a taller “kid,” wearing a dark “Dickies type
     uniform,” standing alone very near a street light diagonally across
     the street from her. He was yelling “Go ahead and run [ ... ]
     pussies, pussy, something like that.” She also described him as
     standing with his hand “outstretched” towards Bialy Street, at the
     other end of the block, when she “saw a flash from his right hand
     which she immediately recognized it as a ‘gunshot.’” This person
     then ran in the same direction as the other two and also turned
     right onto Berbro Street.

            Ms. Schrader testified that, although she did not see the
     gun, she did see the distinct flash of a gun and heard the sound
     of its discharge. After seeing the flash, she then looked further
     up the block towards Bialy [Street] where she saw “a shadow, like
     somebody was running.” She remembered “they were towards
     the corner…. It was more towards [the] corner.”

           Shortly afterwards she saw a dark-colored caravan come
     down Garman Street and then turn right onto Berbro Street. She
     then heard the vehicle proceed up the alley way behind her house
     and turn left onto Bialy Street going the wrong way on a one way
     street.

           Detective Keith Scott testified that on the evening of
     October 14, 2008[,] he was a police officer on patrol in plain
     clothes and an unmarked police vehicle with his partner when he
     received a radio call, at approximately 9:00 p.m., alerting him to
     a shooting in the area of the 7300 block of Garman Street. He
     also received information regarding two black males, one wearing
     a white shirt and the other a dark shirt, who might have been
     victims of the shooting. On arriving at Berbro Street[,] he
     immediately observed two males matching this description go up
     the steps of 2602 Berbro [Street], enter the enclosed front porch
     and exit three to five seconds later. Identifying himself, Detective
     Scott approached [Appellant], whereupon [Appellant] declared he
     had been shot. Detective Scott testified that [Appellant] was
     wearing a blue uniform with the word “Dickies” on one of the
     pockets and that he did not observe anyone else in similar clothes.




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           On learning that [Appellant] did not live at the premises,
     Detective Scott searched the interior of the enclosed porch and
     discovered the butt of a gun protruding from a lawnmower bag
     “like somebody attempted to throw it inside the bag.” On
     discovering the gun, Detective Scott had [Appellant] escorted to
     the hospital because “there was a chance that instead of being a
     victim [Appellant] would possibly be placed under arrest.”

            Police Sergeant Philip McAlorum testified that he was the
     first supervisor on the scene and that when he arrived at 2602
     Berbro Street, Officer Scott had already detained [Appellant]. He
     described [Appellant] as having been “shot in his upper left leg”
     and wearing a “full, navy blue, what on the street would be called
     a Dickies set. Identically matching blue shirt and blue pants, like
     a mechanic's outfit, mechanic’s uniform.” Sergeant McAlorum
     further testified that [Appellant] gave him a “limited description
     of the people he believed shot him, as well as several locations as
     to where it happened.” [Appellant] identified the locations relating
     to this incident as[ ] 2602 Berbro Street[,] the middle of the block
     of Garman Street[,] and the intersection of Garman and Bialy
     Streets.

           Ms. Edna B. Turner testified that she is the owner of 2602
     Berbro Street and that the property was unoccupied in October
     2008. She also testified that she and her granddaughter had been
     to the property, mowed the lawn and checked to make sure it was
     secure on the morning of October 14, 2008.

            Detective Timothy McCool testified that he was assigned to
     investigate this shooting incident of October 14, 2008, and that,
     as part of his investigation, he recovered a .45 caliber revolver
     from the enclosed front porch of 2602 Berbro Street containing
     “six .45 caliber FCCs; they are fired casings.” In addition to the
     revolver, Detective McCool also recovered sixteen FCCs, all within
     twenty feet of each other, from the vicinity of the intersection of
     Garman and Bialy Streets.        He testified that these casings
     consisted of “three .40 caliber FCCs; seven RMP .380 auto FCCs;
     and six RMP .32 auto FCCs.” In addition to the casings, he also
     recovered a projectile nearby on the 7300 block of Garman Street.
     Detective McCool testified that, including the revolver, “I think
     there were four different weapons fired that day.”

           Detective David Tighe testified he was the lead detective
     assigned to investigate this shooting incident. As part of his
     investigation, he personally inspected the area around the


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        lightpost in the middle of the 7300 block of Garman Street and did
        not find any fired cartridge casings.

              Police Officer Raymond Andrejczak testified that he is
        assigned to the Philadelphia Police Department’s Firearms
        Identification Unit. He explained that when a revolver is fired “you
        would not expect to have fired cartridge cases where a revolver
        was fired,” whereas a semiautomatic “automatically ejects [any]
        fired cartridge cases out from the firearm.” Officer Andrejczak
        tested the revolver recovered and found it to be operable. He
        further testified that, although the six casings recovered from the
        revolver had been fired from the same revolver, he was unable to
        determine with scientific certainty that they were shot from that
        revolver, although it was most likely that they had been.

Commonwealth v. Burnett, No. 3498 EDA 2012, unpublished memorandum

at 1-3 (Pa. Super. 2014) (quoting from Trial Court Opinion, 6/3/13, at 4-8).

        Following his jury trial, Appellant was convicted of criminal trespass,1

possession of a firearm by a minor,2 and aggravated assault.3 “On September

4, 2012, he was sentenced to consecutive terms of [3-7] years’ imprisonment

for criminal trespass, [2-5] years’ imprisonment for possession of a firearm

by a minor, and [7-20] years’ imprisonment for aggravated assault.”

Burnett, No. 3498 EDA 2012, unpublished memorandum at 3. Thus, the trial

court sentenced Appellant to an aggregate term of 12-32 years’ incarceration.

This Court subsequently affirmed Appellant’s judgment of sentence, and he

did not seek further review with our Supreme Court. See Commonwealth

v. Burnnett, 100 A.3d 321 (Pa. Super. 2014) (unpublished memorandum).

____________________________________________


1   18 Pa.C.S. § 3503(a)(1)(i).

2   18 Pa.C.S. § 6110.1.

3   18 Pa.C.S. § 2702(a)(1).

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      Appellant filed a timely, pro se PCRA petition on December 3, 2014. The

PCRA court appointed counsel, who then filed an amended PCRA petition on

Appellant’s behalf on October 23, 2016. The PCRA court held a brief hearing

on May 5, 2017; however, the PCRA court did not receive any testimony in

support of Appellant’s claims, and concluded the hearing by advising PCRA

counsel that it intended to issue a notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907.       See N.T. PCRA Hearing,

5/5/17, at 3-6. That same day, the PCRA court issued the Rule 907 notice.

Appellant did not file a response thereto and, on August 11, 2017, the court

dismissed the petition. Appellant filed a timely notice of appeal. He then filed

a timely, court-ordered Pa.R.A.P. 1925(b) statement on September 30, 2017.

The PCRA court issued its 13-page, Rule 1925(a) opinion nearly a year later,

on September 13, 2018.

      Appellant now presents the following questions for our review:

         1. Was … Appellant’s sentence illegal because he was subject
            to an unconstitutional mandatory minimum sentence?

         2. Was trial counsel ineffective for failing to request a self[-
            ]defense charge for the jury[?]

         3. Was trial counsel ineffective for failing to object when the
            [PCRA] [c]ourt failed to give … a “no adverse [inference]”
            charge to the jury?

         4. Did the [PCRA] [c]ourt err in failing to hold an evidentiary
            hearing where substantial issues of material fact were raised
            in the Amended PCRA Petition[?]

Appellant’s Brief at 10.
      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This

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      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted). For ease of disposition, we address Appellant’s claims in

reverse order; however, we integrate Appellant’s fourth claim into our

discussion of the remaining three where appropriate.

      First, Appellant asserts that his trial attorney provided ineffective

assistance of counsel (“IAC”) by failing to request a ‘no adverse inference’ jury

instruction. Stated in the alternative, Appellant contends that his counsel was

ineffective for failing to object when the trial court failed to issue such an

instruction. Under either formulation of the issue, we disagree.

      When addressing an IAC claim,

      [w]e begin with the presumption that counsel rendered effective
      assistance. To obtain relief on a claim of [IAC], a petitioner must
      rebut that presumption and demonstrate that counsel’s
      performance was deficient, and that such performance prejudiced
      him. Strickland v. Washington, 466 U.S. 668, 687–91, 104
      S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our Commonwealth, we
      have rearticulated the Strickland Court’s performance and
      prejudice inquiry as a three-prong test. Specifically, a petitioner
      must show: (1) the underlying claim is of arguable merit; (2) no
      reasonable basis existed for counsel’s action or inaction; and (3)
      counsel’s error caused prejudice such that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error. Commonwealth v. Pierce, 515 Pa.
      153, 158–59, 527 A.2d 973, 975 (1987).

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Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (some internal

citations omitted).

      “A ‘no adverse inference’ instruction directs the jury that they may not

draw any adverse inference from the defendant’s failure to testify in his own

defense, because the defendant has the absolute right not to testify if he so

chooses.” Commonwealth v. Stanley, 830 A.2d 1021, 1022 (Pa. Super.

2003). A trial court’s failure to issue the instruction, when requested by a

defendant, is reversible error.      Id. at 1024 (discussing the holding in

Commonwealth v. Lewis, 598 A.2d 975 (Pa. 1991)).               Similarly, when a

defendant expressly requests that the instruction not be given, but the trial

court issues it anyway, such a decision also constitutes reversible error.

Stanley, 830 A.2d at 1022 (discussing the holding in Commonwealth v.

Edwards, 637 A.2d 259 (Pa. 1993)). Nevertheless, in the context of an IAC

claim that trial counsel was ineffective for failing to request an instruction (or

failing to object when the court does not give the instruction), prejudice is not

presumed; i.e., it is not per se prejudicial to fail to request (or object to the

absence of) a ‘no adverse inference’ jury instruction. Stanley, 830 A.2d at

1026 (discussing the holding in Commonwealth v. Howard, 645 A.2d 1300

(Pa. 1994)).

      Here, Appellant asserts that “the failure of trial counsel to object to the

jury instruction and [his failure] to raise the issue on direct appeal was

prejudicial and was ineffective assistance of counsel.” Appellant’s Brief at 30.

However, all of Appellant’s analysis preceding this conclusion concerns our

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Supreme Court’s ruling in Lewis, and fails to acknowledge that Court’s

decision in Howard. See id. at 27-29.       Thus, Appellant essentially presents

an argument that trial counsel was per se ineffective for failing to request (or

failing to object to the absence of) a ‘no adverse influence’ jury charge. As

such, Howard directly contradicts Appellant’s conclusion.             Moreover,

Appellant fails to present any argument as to how he was prejudiced in the

context of this case. Indeed, this was the same conclusion reached by the

PCRA court below: “[Appellant], relying exclusively on Lewis, makes no

attempt to allege that he was prejudiced. Therefore, his complaint must fail

on its own weight.” PCRA Court Opinion (“PCO”), 9/13/18, at 10. We agree

and conclude that Appellant’s third claim is meritless. See Commonwealth

v. Fears, 86 A.3d 795, 804 (Pa. 2014) (“Failure to prove any prong … will

defeat an ineffectiveness claim.”).

      Next, in his second issue, Appellant asserts that his trial counsel was

ineffective for failing to request a self-defense jury instruction, or, more

generally, for not pursuing a self-defense claim on Appellant’s behalf. The

PCRA court appears to have rejected this claim on both the arguable merit

and reasonable basis prongs of the IAC test, when it stated:

      It is clear from Ms. Schrader’s testimony that, after hearing
      multiple gunshots, she saw two youths running from the direction
      of the shots. She then saw [Appellant] enter the scene taunting
      the fleeing youths, fire an additional shot at the fleeing youths and
      then chase after them. It is also clear that whatever confrontation
      led to the initial shooting had abated and that [Appellant]
      continued to shoot as the other apparent participants were
      retreating. At this point [Appellant] had a duty to retreat, [but]
      he didn’t.

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             As noted, [Appellant] has the burden of proving counsel’s
      deficiency. He has failed to do so. His continued pursuit of and
      shooting at the other youths, obviated the availability of an
      instruction on self-defense. It was not reasonable for counsel to
      pursue this line of defense.

PCO at 9. We disagree with the court’s analysis for the following reasons.

                                Arguable Merit

      In order to successfully invoke a claim of self-defense, the
      following three conditions must be satisfied:

         It must be shown that (a) the actor was free from fault in
         provoking or continuing the difficulty which resulted in the
         injury; (b) that the actor must have reasonably believed
         that he was in imminent danger of death or great bodily
         harm, and that there was a necessity to use such force to
         save himself therefrom; and (c) the actor did not violate any
         duty to retreat or to avoid the danger.

Commonwealth v. Butler, 533 A.2d 992, 993 (Pa. 1987) (cleaned up).

Furthermore, when “a defendant raises the issue of self-defense, the

Commonwealth bears the burden to disprove such a defense beyond a

reasonable doubt.” Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.

Super. 2009) (citation omitted). “The Commonwealth need only [dis]prove

one of these elements beyond a reasonable doubt to sufficiently disprove a

self-defense claim.” Id.

      In Ventura, the defendant claimed on direct appeal that the evidence

was insufficient to disprove his claim of self-defense, a defense he presented

in the trial court.   In rejecting his sufficiency claim, we analyzed the trial

testimony and concluded that the “testimony at trial support[ed] the

proposition that retreat was possible and there was no evidence that Ventura’s

retreat would have exposed him to additional harm.” Id. at 1144. In that

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case, we were constrained by the maxim that when reviewing a sufficiency-

of-the-evidence claim, we consider only the “the evidence admitted at trial in

the light most favorable to the verdict winner[.]”    Id. at 1142 (emphasis

added, citation omitted).

      Instantly, the PCRA court conflated Appellant’s IAC claim—that counsel

should have pursued a claim of self-defense—with a sufficiency claim alleging

that the Commonwealth failed to disprove self-defense. This is immediately

apparent because the court construes Ms. Schrader’s testimony uncritically,

as if it encompassed and suggested the only potential factual conclusions that

could have been reached by the jury. When reviewing the at-issue IAC claim,

however, we are compelled to ask different questions than are required for

sufficiency review on direct appeal. For instance, we need not address the

evidence in a light most favorable to the Commonwealth (the verdict winner

in this case). Instead, to address the arguable merit of this IAC claim, we

must assess whether there was at least some evidence supporting a claim of

self-defense.

      “Before self-defense is in issue, there must be evidence introduced, from

whatever source, to justify a finding that the killing may have been done in

self-defense.” Commonwealth v. Powers, 398 A.2d 1013, 1015 (Pa. 1979)

(emphasis added). We must also be cognizant that “[i]t remains the province

of the jury as to whether [an] appellant was free of provocation, as to whether

he had a duty to retreat, as to whether his belief that he was in danger of

serious bodily harm or death was reasonable, and as to whether his use of

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deadly force was excessive under the circumstances.” Commonwealth v.

Mayfield, 585 A.2d 1069, 1078 (Pa. Super. 1991). While we agree with the

PCRA court that Ms. Schrader’s testimony presented some facts that run

contrary to a claim of self-defense, other evidence was available to support

the claim, and the jury would have been “free to believe all, part or none” of

Ms. Schrader’s testimony when considering such a claim, had the option of

self-defense been available. Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa. Super. 2009) (cleaned up).

      As Appellant points out, the evidence was uncontroverted that he was

shot during the encounter in question. Detective Keith Scott, one of the first

responders to the shooting incident, testified that, when he arrived on the

scene, Appellant immediately reported that he had been shot. N.T., 6/26/12,

at 23.   Sergeant Phillip McAlorum testified that when he arrived soon

thereafter, he observed that Appellant had been “shot in his upper leg[.]” Id.

at 124. Moreover, Detective Timothy McCool testified to his belief that, given

the ballistics evidence discovered at or near the scene of the shooting, up to

four different guns were discharged in the incident. Id. at 154.

      Thus, there is at least some evidence in the record that could support

the claim that Appellant fired in self-defense. Ms. Schrader did not observe

the initial volley of gunshots, but she did hear them.    Almost immediately

thereafter, she observed two individuals fleeing from Appellant, and Appellant

firing in their direction. A jury might conclude from the combination of such

evidence that Appellant was not the initial aggressor, and that he had returned

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fire after being shot.     See Butler, supra.       Moreover, it would not be

unreasonable for the jury to conclude that Appellant legitimately feared that

his life had been threatened to the extent that lethal force was required to

defend himself, given the fact that he had been shot. Id.

        This brings us to the third self-defense criterion: whether Appellant had

a duty to retreat once the unknown individuals took flight. The PCRA court

suggests that this is a forgone conclusion, ostensibly because whatever threat

that was presented by the initial shooting “had abated” when Appellant

“continued to shoot as the other apparent participants were retreating.” PCO

at 9. While we agree that a jury may have come to such a conclusion despite

the presence of self-defense claim, we reject the conclusion that this was the

only possible reasonable conclusion in the circumstances of this case.

        First, even if Appellant’s assailants had begun retreating, the threat

involved was the lethality of a firearm, or multiple firearms, a threat that did

not dissipate quickly merely because the initial aggressors had begun to flee.

It would not be unreasonable to conclude that a person who had just shot

someone in the leg might turn and fire again while retreating. Second, critical

to the question of abatement of the threat is the time that transpired between

the shooting of Appellant and the shots he fired as the purported victims ran

away.     Whether enough time had transpired for the threat to have faded

sufficiently to preclude the assertion of self-defense is itself a factual

determination to be made by the jury. Mayfield, supra. Accordingly, we

conclude that there is arguable merit to Appellant’s claim that counsel should

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have pursued a self-defense claim and, relatedly, that he should have sought

a self-defense jury instruction.

                              Reasonable Basis

      The PCRA court stated that it was reasonable for Appellant’s trial counsel

to not pursue a self-defense claim, but it reached that conclusion premised

solely on its prior conclusion that there was no arguable merit to Appellant’s

IAC claim.    Moreover, because the PCRA court denied Appellant’s petition

without a hearing, trial counsel did not testify as to any other reasonable basis

for his failure to pursue a self-defense claim on Appellant’s behalf. Thus, we

must also reject the court’s conclusion regarding whether trial counsel had a

reasonable basis not to pursue a self-defense claim.

                                   Prejudice

      Prejudice occurs as a result of IAC when “there is a reasonable

probability that the outcome of the [trial] would have been different had

counsel not been ineffective” in failing to pursue a self-defense claim.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). Here, the PCRA

court did not address the prejudice prong of Appellant’s self-defense IAC claim

in its Rule 1925(a) opinion. Given the record before us, including the failure

of the PCRA court to conduct an evidentiary hearing, we decline to address

the prejudice prong of Appellant’s IAC claim at this time. However, for the

reasons state above, we reject the notion that Appellant’s firing of his weapon

while his assailants had begun to retreat conclusively demonstrates, by itself,




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that Appellant was not prejudiced by counsel’s failure to pursue a self-defense

claim.

      For these reasons, we vacate the PCRA court’s order denying relief, and

remand for an evidentiary hearing to determine if trial counsel had a

reasonable basis upon which to not pursue a self-defense claim on Appellant’s

behalf, and whether there is a reasonable probability that the outcome of the

trial would have been different if the jury had the option available of finding

that Appellant acted in self-defense.

      Finally, Appellant asserts that he is entitled to a new sentencing hearing

based on his claim that he received an illegal, mandatory-minimum sentence.

Appellant asserts that his sentence is illegal pursuant Alleyne v. United

States, 570 U.S. 99 (2013). In Alleyne, the High Court held that facts that

increase the penalty for a crime beyond the prescribed statutory minimum

sentence must be submitted to a jury and proven beyond a reasonable doubt.

      Appellant alleges that the trial court sentenced him pursuant to the

mandatory minimum sentence prescribed by 42 Pa.C.S. § 9712 (held

unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.

2014)), which, read, in pertinent part, that “any person who is convicted in

any court of this Commonwealth of a crime of violence … shall, if the person

visibly possessed a firearm ... be sentenced to a minimum sentence of at least

five years of total confinement.” 42 Pa.C.S. § 9712(a).

      The PCRA court rejected this claim, stating that, “[a]lthough it was

aware of the mandatory minimum sentence, the [trial c]ourt, after reviewing

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[Appellant]’s pre-sentence investigation report and hearing [the] argument of

counsel, imposed a sentence in the aggravated guideline range[,]” and,

therefore, did not impose the mandatory minimum sentence. PCO at 4. The

PCRA court asserts that this case is essentially identical to that of

Commonwealth v. Zeigler, 112 A.3d 656 (Pa. Super. 2015).

      In Zeigler, Section 9712 applied to the defendant’s conduct, but the

trial court imposed a sentence that exceeded the mandatory minimum

required by Section 9712. The Zeigler Court nevertheless declined to vacate

the defendant’s sentence based on the following analysis:

      We add that we are aware that a mandatory minimum statute
      exists for [the defendant]’s aggravated assault crime since he
      admitted to visibly possessing a firearm during its commission.
      42 Pa.C.S. § 9712. Based on decisions from this Court, imposing
      such a mandatory is illegal. However, the sentencing court
      exceeded the mandatory minimum sentence when it applied the
      standard guideline range sentence where a deadly weapon was
      used. Hence, the court did not sentence the defendant based on
      the mandatory statute, and his sentence is not illegal on that
      ground.

Zeigler, 112 A.3d at 662 (citations omitted).

      Notably, Appellant fails to address Zeigler in his brief, despite the PCRA

court’s explicit reliance on that decision. In any event, we do not find the

instant matter distinguishable from Zeigler and, therefore, we agree with the

PCRA court that Appellant is not entitled to relief on this claim.

      Order vacated.       Case remanded for an evidentiary hearing in

accordance with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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