J-S07006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    MALIK BENNETT                          :
                                           :
                     Appellant             :   No. 217 EDA 2019

            Appeal from the PCRA Order Entered December 28, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0314291-2003

BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED APRIL 17, 2020

        Appellant Malik Bennett appeals pro se from the order denying, after

an evidentiary hearing, his second petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On appeal, Appellant argues that the

PCRA court erred by not granting a new trial based on after-discovered

evidence, specifically an affidavit from witness Myleek Douthcy.       He also

contends James F. Berardinelli, Esq. (PCRA Counsel), did not effectively

argue the claim before the PCRA court.           We vacate and remand with

instructions, as set forth below.

        We state the facts as previously set forth by this Court:

        On June 1, 2009, following a jury trial before [the trial court],
        Appellant was found guilty of first degree murder, carrying a

*   Retired Senior Judge assigned to the Superior Court.
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      firearm on a public street, and possessing an instrument of crime
      (PIC).   That same day, Appellant was sentenced to the
      mandatory term of life in prison.

      On June 9, 2009, Appellant filed post-sentence motions, which
      were denied by the Court of Common Pleas on October 6, 2009.
      Appellant filed a timely notice of appeal. The Superior Court
      affirmed Appellant’s judgment of sentence on April 13, 2011. On
      June 6, 2011, Appellant filed an “Application for Leave to File a
      Petition for Permission to Appeal out of Time,” and on January 3,
      2012, our Supreme Court denied application for permission to
      file petition for allowance of appeal nunc pro tunc. The Supreme
      Court’s order specifically stated that the application was denied
      “without prejudice to petitioner to file a Post Conviction Relief
      Act petition in the Court of Common Pleas of Philadelphia County
      requesting reinstatement of his allocator rights nunc pro tunc.”

      On May 1, 2012, Appellant filed a timely PCRA petition.
      Appellant raised multiple issues in his first PCRA petition, one of
      which was appellate counsel’s ineffectiveness for failing to file a
      requested petition for allowance of appeal.          Following an
      evidentiary hearing on January 11, 2013, the Court of Common
      Pleas reinstated Appellant’s right to petition for allowance of
      appeal nunc pro tunc, and denied the other claims raised by
      Appellant.     Subsequently, the Court of Common Pleas
      acknowledged that the other claims should instead have been
      dismissed without prejudice, and the Superior Court agreed.
      Thereafter, our Supreme Court received Appellant’s petition for
      allowance of appeal and denied it.

      On June 16, 2014, Appellant filed an amended PCRA petition, re-
      raising the other original claims that were raised in his earlier
      PCRA petition and adding two new claims.[1] The Commonwealth


1 In relevant part, Appellant claimed trial counsel was ineffective by not
playing a tape recording of a 911 call, which, in Appellant’s view, would have
supported his theory of multiple shooters. Commonwealth v. Bennett,
1418 EDA 2015, 2016 WL 5001415, *12 (Pa. Super. filed July 11, 2016)
(unpublished mem.), appeal denied, 166 A.3d 1237 (Pa. 2017). Appellant
claimed that the caller in the 911 tape said “they’re outside shooting. The
bar just let out, and they’re ju...it’s like the OK corral out there,” suggesting
“more than one person was firing shots.” Id. at *13. The Bennett Court,
(Footnote Continued Next Page)


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      filed a motion to dismiss on November 13, 2014, and Appellant
      filed a response to the Commonwealth’s motion to dismiss on
      January 28, 2015.        Having reviewed the pleadings and
      conducted an independent review, the PCRA court determined
      that an evidentiary hearing pursuant to Pa.R.Crim.P. 90[7] was
      warranted on only one of Appellant’s claims. Following the
      evidentiary hearing on May 14, 2015, the PCRA court dismissed
      Appellant’s claim in open court, and dismissed the remainder of
      Appellant’s claims in a written Order that same day. This timely
      appeal followed.

      On February 9, 2003, Appellant and Ramone Randolph
      (Randolph) attended a birthday party at Neil’s R & R Hideaway
      (Bar) at 33rd and Reed Streets in South Philadelphia. The party
      ended in the early morning hours, and, like the other attendees,
      Appellant and Randolph left the Bar and lingered outside. At
      approximately 2:20 a.m., as Randolph was sitting in the driver’s
      seat of his car, Appellant approached the car and shot six times
      through the closed driver’s side window.[2] Four of the shots hit
(Footnote Continued From Prior Page)

in resolving this claim, stated that trial counsel had a reasonable basis for
not playing the tape because:

      Not one witness at trial even suggested there was an additional
      shooter, nor did the ballistics evidence support such a claim.
      Five eyewitnesses testified that they heard gunshots and saw
      petitioner, wearing a red, white, and blue jacket, run from the
      victim’s car or run through the Park immediately after the shots
      were fired . . . .

See Bennett, 2016 WL 5001415 at *13 (citation omitted). “After hearing .
. . five eyewitnesses who, in sum, directly or circumstantially saw petitioner
flee the scene with a gun in his hand, counsel’s decision not to alert the jury
that the setting on that street corner was comparable to the Wild West was
a reasonable one.” Id. (citation omitted). Appellant’s other relevant PCRA
claim was that trial counsel was ineffective by failing to object to the
admission of the autopsy report. Id. at *8 (citation omitted). We add that
“the autopsy report . . . did not indicate that the decedent was not shot at
close range.” See id. at *12 n.22 (citation omitted).
2At trial, the chief medical examiner testified that the gun was fired “at least
two or three feet away from” the victim. N.T. Trial, 5/28/09, at 159.



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      Randolph, who later died at the Hospital of the University of
      Pennsylvania.

      There was a large number of people who were either standing
      outside the Bar or sitting in their cars near the Bar when the
      shooting occurred.     Ronnetta Williams was standing in the
      middle of the street when she heard the gunshots and looked
      up. She saw Appellant running away from the car with a gun in
      his hand. She then approached the car and saw that Randolph
      had been shot. Another partygoer, Teahonda Wilkerson, was
      also standing outside the Bar when the shooting occurred. She
      heard the shots, looked up, and saw Appellant run away from
      Randolph’s car and run through Stinger Park (Park), which was
      across the street from the Bar.       Tanisha Woods had also
      attended the party and was sitting in a car outside the Bar with
      her sister-in-law and heard the shots.        Moments after the
      shooting, she got a call on her cell phone that her brother,
      Anthony Woods, was chasing Appellant as he fled the scene of
      the shooting. Ms. Woods ran up the block and saw her brother
      in pursuit of Appellant. Ms. Woods saw a gun in Appellant’s
      hand and was afraid that Appellant would shoot her brother, so
      she yelled to him to stop pursuing Appellant, and he complied.

      Appellant was also seen running down the street by two
      witnesses who had not attended the party. Raymond White,
      Randolph’s cousin, was standing outside of his mother’s house
      near the Bar and across the street from the Park; he heard the
      shots coming from the direction of the Bar and saw a male
      wearing a red, white, and blue jacket and wearing a hat running
      through the Park immediately afterwards. The victim’s nephew,
      Khayree Gay, was also walking near the Bar and saw a man
      wearing a baseball cap and jacket running through the Park.

      Ballistics evidence showed that six shots were fired, all of which
      were fired from the same gun.         Four of these bullets hit
      Randolph; two shots hit Randolph’s upper back, and two hit his
      left arm. The gun was never recovered.

Bennett, 1418 EDA 2015, 2016 WL 5001415, at *1-*2 (some formatting

altered).   Subsequently, this Court affirmed the denial of Appellant’s first




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PCRA petition, and our Supreme Court denied Appellant’s petition for

allowance of appeal on February 22, 2017.

      On March 22, 2017, Appellant, acting pro se, filed a second PCRA

petition.3   Appellant claimed after-discovered evidence, specifically that on

February     24,   2017,   Appellant   received   an   affidavit   containing   new

exculpatory evidence. Appellant’s PCRA Pet., 3/22/17, at 3.           According to

Appellant, the affidavit by Myleek Douthcy established Appellant’s innocence

and that the Commonwealth committed a Brady violation by suppressing

Douthcy’s statement. The PCRA court appointed PCRA Counsel, who filed an

amended PCRA petition reiterating the claims raised in Appellant’s pro se

petition.

      The PCRA court held an evidentiary hearing on August 13, 2018, at

which Douthcy testified in relevant part as follows:

      [PCRA Counsel]. Can you explain where you were at the time Mr.
      Randolph was shot?

      [Douthcy]. I was standing outside of the bar on the side by the
      telephone booth, and where he was at -- he was in the street in
      his car and it was parked. And I was watching out, and I heard
      the shots. And I heard [Appellant] say, Get down. He was like a
      few feet over from me. That’s when I just got down and
      everyone started running off.

N.T. PCRA Hr’g, 8/13/18, at 6-7.



3The PCRA court mistakenly labeled this petition as Appellant’s third. See
PCRA Ct. Op. at 9.




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      Douthcy testified that he did not see the shooter. Id. at 9. Douthcy

also testified that when the police interviewed him, he told the police that

Appellant was not involved.    Id. at 10-11.   Douthcy explained that after

learning Appellant was arrested, he did not inform Appellant or his counsel

about his testimony because he was living in Williamsport at that time.

Subsequently, the PCRA court asked Douthcy from whom did he hear that

Appellant was arrested, and Douthcy responded as follows:

      Through the streets that [Appellant] got arrested for it, and they
      said that he came and got him and they had let him go. So after
      that, it wasn’t my concern. And then in 2015[4] or ’14, I bumped
      into him, [Appellant], in SCI Dallas. And I said to him, “What
      are you here for?” He let me know that he was incarcerated for
      the homicide for that day. And I was like, “How?” Because my
      understanding was that they said you wasn’t -- it wasn’t you
      that did it and I know that he wasn’t there. I didn’t see you do
      anything, I just heard you say, get down, and everything.

Id. at 11-12.

      On December 28, 2018, the PCRA court denied Appellant’s PCRA

petition. Appellant timely filed a pro se notice of appeal and a timely pro se

court-ordered Pa.R.A.P. 1925(b) statement, which challenged, among other

items, the PCRA court’s denial and PCRA Counsel’s advocacy. At that point

in time, PCRA Counsel had not yet withdrawn from representing Appellant.




4We note Appellant’s first PCRA petition was pending in 2014, and the PCRA
court dismissed it on May 14, 2015.




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     Subsequently, PCRA Counsel filed a motion to withdraw in this Court,

which asserted that he had not been retained for appeal. This Court denied

the motion to withdraw without prejudice to have PCRA Counsel refile his

motion in the PCRA court.    PCRA Counsel subsequently filed a motion to

withdraw with the PCRA court, which granted it. Order, 4/25/19. On May 3,

2019, Appellant filed a pro se application for leave to file a supplemental

Rule 1925(b) statement, which the PCRA court denied.

     The PCRA court prepared a Rule 1925(a) opinion reasoning that

Douthcy’s testimony was “inconsistent with the physical and testimonial

evidence introduced at the trial.”   PCRA Ct. Op. at 7.      The PCRA court

summarized inconsistencies between Douthcy’s affidavit and his testimony at

the PCRA hearing.     Id. at 8.      Accordingly, the PCRA concluded that

Douthcy’s testimony was not credible.5 Id.

     Appellant raises the following issues on appeal, which we reordered:

     1. Whether the PCRA Court erred and denied petitioner his
     federal and state constitutional rights to due process of . . . law
     by dismissing [A]ppellant’s PCRA [petition] after conducting an
     evidentiary hearing and appointment of counsel, only to
     determine that on appeal, the appellant proceed pro se or with
     retained counsel and that no counsel is to be appointed, which is
     in violation of Pa. R. Crim. P. Rule 904 (E)(2). Where the
     [court’s] determination is not supported by the record and free
     of legal errors[?]



5The PCRA court’s opinion addressed other issues that we do not summarize
because of our disposition.




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      2. Whether initial PCRA counsel rendered ineffective assistance
      of counsel based on his improper/presentation of testimony from
      after-discovered exculpatory witness Myleek [Douthcy] during an
      evidentiary hearing conducted on August 13, 2018?

      3. Whether the PCRA Court erred and denied appellant his
      federal and state constitutional rights to due process of law by
      dismissing [A]ppellant’s initial PCRA petition without providing
      [A]ppellant a Notice of Intent to dismiss pursuant to Pa.R.
      Crim.P. 907?

      4. Whether in reviewing the property of the PCRA filing, it was
      an abuse of discretion for the PCRA Court to determine that
      appellant could not obtain relief pursuant to invoking the
      applications of title 42 Pa. C.S.A. 9543(a)(2)(vi), where
      appellant presented after-discovered [exculpatory] evidence and
      met the terms announced [in] Com v. Small; 2018 Pa Lexis
      3761 (2018)?

Appellant’s Brief at 3.

      Initially, we address whether Appellant is entitled to appellate counsel

for his second PCRA petition.   In Commonwealth v. Jackson, 965 A.2d

280 (Pa. Super. 2009), the defendant filed a second PCRA petition, and the

PCRA court appointed counsel for an evidentiary hearing.       Jackson, 965

A.2d at 282. The PCRA court denied relief and “relieved [PCRA counsel] of

his appointment.” Id. The defendant, acting pro se, appealed. Id. at 281.

      The Jackson Court addressed whether the defendant was entitled to

appointed appellate counsel for his second PCRA petition.     Id. at 283.   It

first quoted Pa.R.Crim.P. 904(D) and (F)(2):

      (D) On a second or subsequent petition, when an unrepresented
      defendant satisfies the judge that the defendant is unable to
      afford or otherwise procure counsel, and an evidentiary hearing
      is required as provided in Rule 908, the judge shall appoint
      counsel to represent the defendant.

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                                 *     *   *

     (F) When counsel is appointed,

                                 *     *   *

     (2) the appointment of counsel shall be effective throughout the
     post-conviction collateral proceedings, including any appeal
     from disposition of the petition for post-conviction collateral
     relief.

Pa.R.Crim.P. 904(D), (F)(2) (emphasis in original).

     The Jackson Court reasoned as follows:

     At first glance, it appears that Rule 904(D) limits the
     appointment of counsel to only the evidentiary hearing.
     However, our courts have consistently interpreted Rule
     904(F)(2) and its predecessors, Rule 904(E) (2003), Rule 904(D)
     (2001), and Rule 1504(d) (2001), to extend the right of
     representation throughout the appeals process.              The
     appointment of counsel throughout the litigation of a first
     petition is mandatory even when it appears that the petition is
     untimely or the petition does not present a cognizable claim.
     The appointment of counsel is considered necessary in order to
     determine whether the petitioner could invoke a timeliness
     exception or raise a cognizable claim.

     We find that the same logic extends to cases in which counsel is
     appointed pursuant to Rule 904(D).        If the appointment of
     counsel is deemed necessary for purposes of conducting an
     evidentiary hearing, then the petitioner requires the assistance
     of counsel throughout the litigation of the issue. Such litigation
     necessarily includes the appeals process.

Jackson, 965 A.2d at 283-84 (citations and footnotes omitted).            The

Jackson Court therefore remanded for appointment of appellate counsel

and noted counsel may file a Rule 1925(b) statement nunc pro tunc to

preserve any issues. See id. at 284.


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     Although our research has not identified any reported case citing

Jackson, we note that a party may cite to non-precedential cases for their

persuasive value to the extent those cases were filed after May 1, 2019.

See Pa.R.A.P. 126(a)-(b). Most recently, in Commonwealth v. Davis, 525

EDA 2019, 2019 WL 4899219 (Pa. Super. Oct. 4, 2019) (unpublished

memo.), the PCRA court appointed PCRA counsel for the defendant’s second

PCRA petition. Davis, 2019 WL 4899219 at *1. Following the PCRA court’s

denial of relief, the defendant, acting pro se, appealed.   Id. at *2.     The

Davis Court noted that appointed PCRA counsel never filed a petition to

withdraw and did not enter her appearance before this Court. Id.

     Citing to Rule 904(F)(2) and Jackson, the Davis Court stated:

     When counsel is appointed to represent a PCRA petitioner, “the
     appointment of counsel shall be effective throughout the post-
     conviction collateral proceedings, including any appeal from
     disposition of the petition.” Pa.R.Crim.P. 904(F)(2). This Court
     has held that Rule 904(F)(2) applies not just in cases where
     counsel is appointed as of right for a first-time PCRA petitioner,
     but also when counsel is appointed by the court for an
     evidentiary hearing on a second PCRA petition.          Jackson,
     supra.

Id. Based in part on this reasoning, and because of the procedural posture

in the case, which we do not recap here for brevity, the Davis Court vacated

the order dismissing the defendant’s second PCRA petition and remanded to

have the PCRA court resolve whether the defendant wished to be

represented by appellate counsel or proceed pro se on appeal. Id. at *3.




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      In Commonwealth v. Corbett, 2040 EDA 2017, 2019 WL 4273820

(Pa. Super. Sept. 10, 2019) (unpublished memo.), the Court addressed a

similar situation to the instant case, except involving privately-retained

counsel for a second PCRA petition. Corbett, 2019 WL 4273820 at *1. In

Corbett, the defendant’s privately-retained counsel filed a second PCRA

petition, the PCRA court held an evidentiary hearing, and the PCRA court

denied relief.    Id.   The defendant, acting pro se, filed an appeal.    Id.

Following a procedural exchange that we do not summarize, the defendant’s

privately-retained counsel filed a motion to withdraw with this Court, which

granted it. Id.

      The Corbett Court addressed whether the defendant was “properly

proceeding pro se” on appeal. Id. (stating, “Before reaching the merits of

[the defendant’s] claims on appeal, we must determine first whether he is

properly proceeding pro se.”).

      For second and subsequent petitions, a petitioner is not entitled
      to the appointment of counsel unless the petitioner proves he “is
      unable to afford or otherwise procure counsel, and an
      evidentiary hearing is required[.]” Pa.R.Crim.P. 904(D). In such
      an instance, counsel must be appointed, and appointed counsel
      shall continue representation throughout the PCRA proceedings,
      including any appeal therefrom. Pa.R.Crim.P. 904(F)(2).

      Although this was [the defendant’s] second PCRA petition, he
      may have had a rule-based right to counsel, as the PCRA court
      determined that an evidentiary hearing was required. However,
      because [the defendant] retained private counsel prior to filing
      his petition, the PCRA court did not determine whether [the
      defendant] was unable to afford or otherwise procure counsel,
      which would have entitled him to appointed counsel pursuant to
      Pa.R.Crim.P. 904(D).

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Id. at *2. The Corbett Court continued: “Although this Court granted

[privately-retained counsel’s] petition to withdraw, if [the defendant] is

unable to afford or otherwise procure counsel, his rule-based right to counsel

for his second PCRA petition remains in effect on appeal. See Pa.R.Crim.P.

904(D) and (F)(2).” Id. The Corbett Court remanded “to the PCRA court

to conduct any proceedings it deem[ed] necessary to determine whether

[the defendant was] entitled to appointed counsel for this appeal.” Id.

      The PCRA court shall file an opinion with this Court within 30
      days as to one of the following: (1) If the PCRA court determines
      that [the defendant] was entitled to appointed counsel on his
      second PCRA petition, the PCRA court shall appoint new counsel.
      The P[C]RA court shall additionally order appointed counsel to
      file a Pa.R.A.P. 1925(b) statement on [the defendant’s] behalf.
      (2) If [the defendant] is entitled to appointed counsel, but
      indicates he would like to proceed pro se, the PCRA court shall
      conduct an on-the-record colloquy to ensure the decision to
      waive counsel is knowing, intelligent, and voluntary.         See
      Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). (3) If
      [the defendant] is able to afford or otherwise procure counsel,
      but declines to do so, the PCRA court shall advise this Court and
      this appeal shall proceed accordingly.

Id.

      Turning to the instant case, the PCRA court, identical to the PCRA

court in Jackson, dismissed Appellant’s appointed counsel for Appellant’s

second PCRA petition without appointing new appellate counsel.            See

Jackson, 965 A.2d at 283-84 (relieving PCRA counsel of his appointment).

Cf. Davis, 2019 WL 4899219 at *3 (noting defendant’s appointed counsel

for his second PCRA petition never filed a petition to withdraw but


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defendant, acting pro se, appealed); Corbett, 2019 WL 4273820 at *2

(noting this Court granted the defendant’s privately-retained PCRA counsel

petition to withdraw, but that defendant, if unable to afford or obtain

counsel, is still entitled to appointed appellate counsel under Rule 904(D)

and (F)(2)).   To paraphrase the Jackson Court, and in accord with other

non-precedential decisions addressing this issue, we remand to the PCRA

court for appointment of new PCRA appellate counsel, who may file a

Pa.R.A.P. 1925(b) statement nunc pro tunc, unless Appellant wishes to

proceed pro se. See Jackson, 965 A.2d at 283-84; accord Davis, 2019

WL 4899219 at *3 (remanding to have PCRA court determine whether

defendant wished to be represented by appointed counsel on appeal or

proceed pro se); Corbett, 2019 WL 4273820 at *2 (remanding for further

proceedings to establish whether the defendant should proceed pro se or

with counsel).   Should Appellant wish to proceed pro se, the PCRA court

must hold a Grazier hearing and supplement the certified record with the

notes of testimony from that hearing. See Corbett, 2019 WL 4273820 at

*2. Any newly-appointed PCRA counsel must remain in the case until the

final disposition of Appellant’s second PCRA petition.   The PCRA court may

file a new Rule 1925(a) opinion or rely on its prior opinion.          Our

Prothonotary is instructed to establish a new briefing schedule upon

receiving notice from new appellate counsel unless Appellant is proceeding

pro se.


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     Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/20




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