J-A09037-18


                                2018 PA Super 239


 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 COREY M. DURRETT KING                     :
                                           :
                    Appellant              :   No. 17 WDA 2017

              Appeal from the PCRA Order December 13, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0010053-2013


BEFORE:      BOWES, J., DUBOW, J., and MURRAY, J.

CONCURRING AND DISSENTING OPINION BY BOWES, J.:

                                                    FILED AUGUST 28, 2018

      While I agree with the learned Majority’s conclusion that the PCRA court

erred in dismissing Appellant’s PCRA petition, I do not believe that an

evidentiary hearing is required to determine whether trial counsel had a

reasonable basis for not raising the defense for fleeing or attempting to elude

police officer set forth in Section 3733(c)(1). Instead, as the record clearly

establishes that the omission of trial counsel had no reasonable basis, I believe

that relief should be granted, and the case should simply be remanded for a

new trial.

      In my view, the Majority correctly determined that a police vehicle’s

“lights and siren” do not constitute “markings” for purposes of determining

whether a police vehicle is “unmarked” under 75 Pa.C.S. § 3733(c)(1), and,
J-A09037-18


consequently, that Appellant’s underlying claim that trial counsel was

ineffective for failing to raise the defense has merit. I also agree with the

Majority’s finding that Appellant suffered prejudice as a result of trial counsel’s

failure to raise the defense.

      On the record before us, I believe that an evidentiary hearing to afford

trial counsel an opportunity to explain why he did not raise the defense is

unnecessary. While I am mindful of our Supreme Court’s preference for a

hearing on counsel’s strategy before venturing to hold that counsel lacked a

reasonable basis for his or her actions or inactions, it is not a mandatory rule

to be applied in all cases. See Commonwealth v. Colavita, 993 A.2d 874,

895 (Pa. 2010) (“As a general rule, a lawyer should not be held ineffective

without first having an opportunity to address the accusation in some

fashion.”) (emphasis added); see also Commonwealth v. Turner, 365 A.2d

847, 849 (Pa. 1976)      (“Where . . . it is impossible to tell from the record

whether or not the action of trial counsel could have had a rational basis, . . .

remand for an evidentiary hearing at which trial counsel may state his reasons

for having chosen the course of action taken . . .” is appropriate) (emphasis

added).

      Our High Court has held that a hearing is not required when the record

on appeal clearly shows that there could have been no reasonable basis for

counsel’s inaction.   See Commonwealth v. McGill, 832 A.2d 1014, 1022

(Pa. 2003) (holding that when the record clearly establishes that the act or


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omission of trial counsel was without a reasonable basis, this Court may

resolve the reasonable basis prong absent a remand for an evidentiary hearing

as to counsel’s strategy); accord Turner, supra at 849 (holding that no

evidentiary hearing is necessary “[w]here the record on appeal clearly shows

that there could have been no reasonable basis for a damaging decision or

omission by trial counsel”).

      In the instant case, the record on appeal clearly shows that there could

have been no reasonable basis for trial counsel’s failure to raise the defense

for fleeing or attempting to elude police officer set forth in Section 3733(c)(1).

As the Majority observes,

      There is no dispute in this matter that the car at issue did not
      display any decals or graphics identifying it as a police vehicle.
      The testimony at trial of the detectives who arrested Appellant
      unequivocally indicates that they were driving an unmarked police
      vehicle that only had lights and a siren. Additionally, the record
      reflects that at the time they were pursuing Appellant, the
      detectives were not in uniform, but were in plain clothes.

Majority Opinion at 10-11 (citation to record omitted).       On this basis, the

Majority held that because the police vehicle that pursued Appellant was

unmarked, and the officers inside that unmarked vehicle were not in uniform,

Appellant’s claim regarding the defense of Section 3733(c)(1) has merit, and

Appellant was prejudiced by trial counsel’s inaction. Id.

      This jurist cannot imagine any reasonable basis for trial counsel not to

raise a statutorily-provided defense to which his client is unquestionably

entitled to assert.   See Colavita, supra at 887 (“A finding that a chosen


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J-A09037-18


strategy lacked a reasonable basis is not warranted unless it can be concluded

that an alternative not chosen offered a potential for success substantially

greater than the course actually pursued.”).      Requiring the PCRA court to

conduct another evidentiary hearing, the outcome of which would be a

foregone conclusion, would be a waste of judicial resources and is unnecessary

under the circumstances presented herein. See Commonwealth v. Schultz,

484 A.2d 146, 148 n.4 (Pa.Super. 1984) (granting new trial rather than

evidentiary   hearing,   where   this   Court   found   counsel’s   actions   were

unsubstantiated, and a remand for an evidentiary hearing would be a waste

of precious judicial time). For this reason, I would simply grant relief, and

remand the case for a new trial.




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