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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                             OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ANTOINE LAMAR WILSON,

                          Appellant                 No. 1984 EDA 2018

             Appeal from the PCRA Order Entered June 22, 2018
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015851-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.:                         FILED JULY 15, 2019
      Appellant, Antoine Lamar Wilson, appeals from the post -conviction
court's June 22, 2018 order denying his timely -filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we are compelled to vacate the court's order and remand for an evidentiary
hearing.

      The PCRA court summarized the facts and pertinent procedural history

of Appellant's case, as follows:

             On November 28, 2013, [Appellant's] family members were
      celebrating Thanksgiving at [Appellant's] mother's home in
      Philadelphia. [Appellant] went into the kitchen and began arguing
      with his sister, the complainant in this case, Atiya Wilson ("Ms.
      Wilson"). [Appellant] was upset that the mother of his children
      had been invited to Thanksgiving dinner. During this argument,
      [Appellant] told Ms. Wilson that he was "strapped." He proceeded
      to pull a firearm from the waistband of his pants, point it at Ms.
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     Wilson's head, and threaten[] to kill her. He then pointed the gun
     toward the living room where other family members were present
     and threatened to kill the father of Ms. Wilson's children.

           Ms. Wilson's teenage son Talik Monsonto ("Mr. Monsonto")
     testified that he first saw the firearm a few minutes before the
     argument started, when it slipped from the pocket of [Appellant's]
     pants. Once [Appellant] began making threats, Mr. Monsonto
     went into the living room to get other family members. Together
     they pushed [Appellant] out of the house.

            Moments later, [Appellant] reentered the house and
     returned to the kitchen. As he walked in, Ms. Wilson was in the
     process of calling the police. [Appellant] again pointed the firearm
     at Ms. Wilson and threatened to blow up the house if she made
     the call. Ms. Wilson dropped the phone and ducked to avoid the
     firearm's aim. During this time, Ms. Wilson's three -year -old
     daughter had come into the kitchen. After Ms. Wilson ducked, the
     firearm was pointed at the three -year -old. Family members were
     again able to safely get [Appellant] out of the house, this time
     locking the front door. Ms. Wilson called the police, who arrived
     approximately twenty minutes later. [Appellant] turned himself
     in to the police with his parole agent on December 5, 2013.

            On September 22, 2014, following a waiver trial, this [c]ourt
     convicted [Appellant] of multiple violations of the Uniform
     Firearms Act ("the UFA"),1 possession of an instrument of crime,2
     terroristic threats,3 simple assault,4 and recklessly endangering
     another person ("REAP").5 Sentencing was deferred for
     completion of a presentence investigation. On December 3, 2014,
     this [c]ourt sentenced [Appellant] to six to twelve years of
     incarceration, followed by ten years of probation.

        1 [Appellant] was found guilty of the following sections: 18
        Pa.C.S. § 6105(a)(1) (possession of a firearm prohibited);
        18 Pa.C.S. § 6106(a)(1) (firearms not to be carried without
        a license); and 18 Pa.C.S. § 6108 (carrying firearms on
        public streets in Philadelphia).
        2 18 Pa.C.S. § 907(a).
        3 18 Pa.C.S. § 2706(a)(1).
        4 18 Pa.C.S. § 2701(a).
        5 18 Pa.C.S. § 2705.



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         [Appellant] filed a timely notice of appeal on December 22,
       2014. The Superior Court affirmed [Appellant's] judgment of
       sentence on January 5, 2016. [Commonwealth v. Wilson, No.
       1 EDA 2015, unpublished memorandum (Pa. Super. filed on Jan.
      5, 2016).] On December 30, 2016, [Appellant] filed a timely[,]
      pro se [PCRA] petition.... Appointed counsel filed an amended
      petition on August 8, 2017[,] claiming that trial counsel was
      ineffective for failing to present witnesses. The Commonwealth
       answered with a motion to dismiss on February 20, 2018. On May
       21, 2018, this [c]ourt issued a [Pa.R.Crim.P.] 907 notice of its
       intent to dismiss the petition without a hearing. This [c]ourt
      formally dismissed the petition on June 22, 2018. On July 9, 2018,
       [Appellant] filed a timely notice of appeal. On July 31, 2018,
       [Appellant] filed a Statement of Errors Complained of on Appeal
       pursuant to [Pa.R.A.P.] 1925(b).
PCRA Court Opinion (PCO), 9/28/18, at 1-3. The PCRA court issued its Rule

1925(a) opinion on September 28, 2018.

       Herein, Appellant raises one issue for our review: "Whether the court
erred in not granting relief on the PCRA petition alleging [a]ppellate [c]ounsel

was ineffective and in not granting an evidentiary hearing?" Appellant's Brief

at 8.1,2

      We begin by recognizing that "[t]his Court's standard of review from the

grant or denial of post -conviction relief is limited to examining whether the
lower court's determination is supported by the evidence of record and
whether it is free of legal error." Commonwealth v. Morales, 701 A.2d 516,
520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4


1 While Appellant refers to appellate counsel in his statement of the questions
involved, it is clear from the argument portion of his brief that he is really
claiming that his trial counsel acted ineffectively.

2 We note that the Commonwealth has not filed a brief in this case, despite
requesting, and being granted, an extension of time in which to do so.
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(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has directed that the following
standards apply:

     [A] PCRA petitioner will be granted relief 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, 606 Pa. [1,] 21, 993 A.2d [874,]
     886 [(Pa. 2010)] (citing Strickland[ v. Washington, 466 U.S.
     668 (1984)]). In Pennsylvania, we have refined the Strickland
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
     1987)]. 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, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
     "If a petitioner fails to prove any of these prongs, his claim fails."
     Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
     260 (2013) (citation omitted). Generally, counsel's assistance is
     deemed constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate his
     client's interests. See Ali, supra. Where matters of strategy and
     tactics are concerned, "[a] finding that a chosen 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." Colavita,
     606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
     omitted). To demonstrate prejudice, the petitioner must show
     that "there is a reasonable probability that, but for counsel's
     unprofessional errors, the result of the proceedings would have
     been different." Commonwealth v. King, 618 Pa. 405, 57 A.3d
     607, 613 (2012) (quotation, quotation marks, and citation
     omitted). "[A] reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the

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               Ali, 608 Pa. at 86-87, 10 A.3d at 291 (quoting
      proceeding."
      Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
      (2008) (citing Strickland, 466 U.S. at 694....)).
Commonwealth v. Spotz, 84 A.3d 294,311-12 (Pa. 2014).
      Appellant contends that the PCRA court erred in denying his petition
without a hearing where his trial counsel acted ineffectively by not calling
Rubin Thomas (his stepfather), Lawanda Clark (a friend), and Christine Wilson

(his mother) to the stand at trial. Appellant claims that these witnesses were

willing and available to testify for the defense, and would have testified that
he lived at the home in which the above -described incident occurred. Such
testimony, Appellant claims, would have established a defense to the charge

of carrying a firearm without a license, which is defined as follows:

      (a) Offense defined. --
         (1) Except as provided in paragraph (2), any person who
         carries a firearm in any vehicle or any person who carries a
         firearm concealed on or about his person, except in his
         place of abode or fixed place of business, without a valid
         and lawfully issued license under this chapter commits a
         felony of the third degree.
18 Pa.C.S. § 6106(a) (emphasis added).

      Our Supreme Court has explained that,

      [w]hen raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the Strickland test by establishing
      that: (1) the 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 the defendant a
      fair trial.
Commonwealth v. Sneed, 45 A.3d 1096,1108-09 (Pa. 2012).

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      Here, the PCRA court denied Appellant's ineffectiveness claim on the

sole basis that Appellant had failed to meet the prejudice prong of this test.
It reasoned that, "[a]ssuming arguendo that [Appellant] lived at [the home],
the testimony at trial unequivocally prove[d that Appellant] left the house
more than once during the argument with the complainant. Therefore, he was

still outside 'his place of abode' with the gun." PCO at 4 (citing N.T. Trial,
9/22/14, at 11-12, 18 28-29).
      We are constrained to conclude that the PCRA court's prejudice analysis

is legally flawed.   First, this Court has held that "the Commonwealth must
establish that a defendant acted 'intentionally, knowingly or recklessly' with
respect to each element [of section 6106]...." Commonwealth v. Scott, 176
A.3d 283, 291 (Pa. Super. 2017). Here, the Commonwealth's two witnesses,

Talik Monsonto and Atiya Wilson, both testified that Appellant did not
voluntarily leave the house with the gun but, rather, he was pushed outside
by his family members. See N.T. Trial at 11-12 (Monsonto's testifying that
he and his stepfather and brother "pushed [Appellant] to the front door, [and]

got him out"); id. at 18 (Monsonto's stating that after Appellant pulled the
gun from his waistband, he and other family members "pushed him out of the

door" and, after Appellant reentered the house, they "push[ed] him back out

of the door" again); id. at 25, 28-29 (Wilson's testifying that family members

forced Appellant out of the house); id. at 32 (Wilson's stating that Appellant
was being "pushed out" of the home).          Thus, contrary to the court's


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conclusion, the evidence did not demonstrate that Appellant 'intentionally,
knowingly, or recklessly' left the home while possessing the gun.

      Moreover, even if the evidence was sufficient to prove this element of
Appellant's section 6106 offense, there was no evidence establishing that
Appellant concealed the weapon once outside. Monsonto testified that when

he and other family members pushed Appellant out of the house, the gun was

in Appellant's hand; thus, it was not concealed. N.T. Trial at 18. Monsonto

did not offer any testimony about what Appellant did with the gun after that,
or after Appellant was removed from the home the second time. Likewise,
Wilson did not testify about what Appellant did with the gun after he was
forced out of the residence either time.

      In light of this record, the PCRA court erred by concluding that Appellant

was not prejudiced by counsel's decision not to call the at -issue witnesses
simply because he "left the house more than once" during the incident. PCO

at 4. Accordingly, we vacate the court's order denying Appellant's petition
and remand for the court to conduct an evidentiary hearing, after which the
court must determine if Appellant met all the prongs for proving trial counsel's

ineffectiveness.   In particular, the court must: (1) determine if Appellant
established that the witnesses were willing and available to testify, and that
trial counsel knew of their existence; (2) make a credibility determination
regarding their claims that Appellant lived at the residence at the time of the

incident; and (3) determine if counsel had any reasonable basis for not calling

them to the stand at trial.

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      Order vacated.   Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/15/19




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