J-S19006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DERRELL V. SAVAGE,

                        Appellant                  No. 1551 EDA 2015


            Appeal from the PCRA Order Entered April 30, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0505662-2005


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 04, 2016

     Appellant, Derrell V. Savage, appeals from the post conviction court’s

April 30, 2015 order denying his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant presents one claim

of trial counsel’s ineffectiveness. After careful review, we vacate the PCRA

court’s order and remand for an evidentiary hearing.

     The PCRA court summarized the facts of Appellant’s case, as follows:

            On March 13, 2005, Christine Ham [“the decedent”], called
     Appellant, who[m] she believed to be her boyfriend, and invited
     him to visit her in Chester, PA. Appellant[,] accompanied by two
     of his friends, Demarcus Hamms and John Garrett, were en
     route when they were attacked by a group of local youths armed
     with bats, pipes, and broomsticks. Appellant and his friends
     believed that the decedent set them up for the assault, and on
     their way back to Philadelphia[,] they discussed killing her in
     retaliation. Appellant and his co-conspirators planned to lure the
     decedent to Philadelphia, stab her to death, burn her body, and
     then throw her remains in the river behind the Bartram Village
     apartment complex in southwest Philadelphia. On April 23,
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     2005[,] they carried out their plan.      Appellant lured [the]
     [d]ecedent to the Bartram Garden Botanical Historical Site
     whereupon Hamms repeatedly stabbed her while Appellant
     punched and stomped her. The three then put the decedent in a
     trash can and unsuccessfully attempted to set her afire. Finally,
     they threw her into the river and watched until she began to
     sink. [The] [d]ecedent did not die immediately, however. She
     managed to drag herself onto land but succumbed to blood loss
     and hypothermia. The next day[,] Philadelphia police officers
     found the decedent’s body lying in the field at Bartram Garden.
     An autopsy revealed that she had been stabbed sixteen times.

           On the night of the murder[,] Philadelphia Police Officer
     Jessie Davis was told that Appellant had information regarding
     the killing and arrangements were made for [Officer] Davis to
     meet with him. Appellant told [Officer] Davis that Hamms and
     Dawson stabbed a black female in the field of Bartram Garden
     Botanical Site but he did not acknowledge his involvement in the
     murder. The next day[, Officer] Davis transported Appellant to
     the Police Department’s Homicide Unit where Appellant signed in
     as a visitor and sat in a public waiting area to be interviewed by
     detectives. Appellant was then placed in an interview room and
     remained there for several hours as an ‘information witness.’
     The door to the interview room was locked and, though he was
     never informed so, he was free to go at any time. During the
     interview[,] Appellant stated that he was present at the time of
     the murder and he described how Dawson and Hamms
     committed the murder. At the conclusion of the interview he
     was given dinner and allowed to take a nap. Later, Appellant
     was informed that Dawson and Hamms had also been
     interviewed and he then admitted his involvement in the murder.

PCRA Court Opinion (PCO), 8/14/15, at 2-3 (unnumbered; citations to the

record omitted).

     On December 14, 2006, a jury convicted Appellant of first-degree

murder and criminal conspiracy based on his participation in the murder of

Christine Ham.     On February 28, 2007, Appellant was sentenced to life

imprisonment, without the possibility of parole, for his murder conviction,

and a concurrent term of 20 to 40 years’ incarceration for his conspiracy

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offense.     On April 25, 2008, this Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied his subsequent petition for

allowance of appeal on December 16, 2008. Commonwealth v. Savage,

953 A.2d 839 (Pa. Super. 2008) (unpublished memorandum), appeal

denied, 962 A.2d 1196 (Pa. 2008).

        On July 27, 2009, Appellant filed a timely, pro se PCRA petition and

counsel was appointed.         Counsel filed an amended petition on March 14,

2011.      Over the ensuing years, the PCRA court continued the PCRA

proceedings 23 times at the request of the Commonwealth and/or defense

counsel.1 Finally, on January 15, 2015, the Commonwealth filed a motion to

dismiss.      After   another     continuance,   the   court    ultimately   issued   a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a

hearing, and did so by order dated April 30, 2015.

        Appellant filed a timely notice of appeal.             Thereafter, new PCRA

counsel entered his appearance on Appellant’s behalf and timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement. The PCRA

court filed a Rule 1925(a) opinion on August 14, 2015.              Herein, Appellant

raises two issues for our review:

        1. That the Honorable PCRA [c]ourt erred where it dismissed
        [Appellant’s] Amended PCRA Petition without holding an

____________________________________________


1
 The large majority of these continuances are described on the trial court’s
docket as “PCRA Hearing Continued.”



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      evidentiary hearing even though [Appellant] properly pled and
      could have proven causes for relief including the following:

         a) Trial counsel was ineffective when counsel failed to call
         known and necessary witnesses at the motion to suppress
         which would clearly have established that [Appellant] was
         arrested without a warrant and without probable cause and
         that this unconstitutional seizure of [Appellant] lead [sic]
         directly to his unwilling and uncounseled out-of-court
         statement. Rather than voluntarily going to the police
         station, [Appellant] was actually taken against his will and
         this important piece of the case was never developed by
         previous/trial/motion counsel, although he well knew about
         it.

      2. That [Appellant] is entitled to remand to the PCRA [c]ourt for
      an evidentiary hearing as the [c]ourt erred when it denied
      [Appellant’s] Amended PCRA Petition without holding said
      hearing.

Appellant’s Brief at 8.

      We begin our analysis by noting that,

      [t]he standard of review for an order denying post-conviction
      relief is limited to whether the record supports the PCRA court's
      determination, and whether that decision is free of legal error.
      Commonwealth v. Allen, 557 Pa. 135, 142, 732 A.2d 582, 586
      (1999). The PCRA court's findings will not be disturbed unless
      there is no support for the findings in the certified record.
      Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001).
      Furthermore, a petitioner is not entitled to a PCRA hearing as a
      matter of right; the PCRA court can decline to hold a hearing if
      there is no genuine issue concerning any material fact and the
      petitioner is not entitled to post-conviction collateral relief, and
      no purpose would be served by any further proceedings.
      Pa.R.Crim.P. 907(1); Commonwealth v. Hardcastle, 549 Pa.
      450, 701 A.2d 541 (1997).

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007).

      Where, as here, a petitioner asserts ineffective assistance of counsel,

the following standard applies:



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     [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, 104 S.Ct. 2053 (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 proceeding.’” Ali, 608 Pa. at
     86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
     598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
     U.S. at 694, 104 S.Ct. 2052)).

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


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      We additionally note that, in the context of trial counsel’s failure to call

a witness at a suppression hearing, a petitioner demonstrates ineffectiveness

by proving:

      (1) the existence and availability of the witness; (2) counsel's
      awareness of, or duty to know of the witness; (3) the witness'
      willingness and ability to cooperate and appear on behalf of
      appellant; and (4) the necessity of the proposed testimony in
      order to avoid prejudice.

Commonwealth v. Hall, 701 A.2d 190, 201 (Pa. 1997)

      In Appellant’s first issue, he asserts that the PCRA court erred by

denying his petition, without a hearing, when he presented a meritorious

claim of ineffective assistance of trial counsel premised on counsel’s handling

of Appellant’s pretrial motion to suppress.     By way of background, in that

motion, Appellant argued, inter alia, that his statements to police on April

25th and 26th of 2005 should be suppressed because they were the fruit of

an illegal arrest.    However, at the suppression hearing, defense counsel

focused on arguing, and eliciting evidence to prove, that Appellant’s

statements were involuntary because his “will and his understanding were

overborne by [the] extremely lengthy period of [time that he was] held in a

small room, without food or drink, [and] without anybody to advise him.”

N.T. Suppression Hearing, 12/4/06, at 4-5; see also Trial Court Opinion

(TCO), 5/2/07, at 11 (construing Appellant’s suppression argument as

claiming that his statements to police were “involuntary because the police

locked him in a small room for a long period of time before they started

interviewing him”).    While defense counsel mentioned that Appellant was

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“brought … in custody to the homicide division[,]” counsel did not present

evidence to support that Officer Davis had illegally arrested Appellant prior

to transporting him to the police department for questioning.               N.T.

Suppression Hearing at 2.

       Indeed, the Commonwealth’s evidence demonstrated that Appellant

voluntarily came to the police station to be interviewed.          For instance,

Philadelphia Police Detective Kevin Judge testified that Appellant “contacted

… [O]fficer [Davis,] informing him that he had information about this murder

and the … officer made arrangements for [Appellant] to be brought down to

Homicide to be interviewed.”           Id. at 13.   The detective explained that

Appellant walked “in through the front door, into the lobby[,]” signed in on a

“visitor’s log book” at 7:46 a.m. on April 25, 2005, and then was “put in

[the] waiting room area for witnesses in the homicide office.” Id. at 14, 15,

16.     Based on this evidence, the suppression court concluded that

Appellant’s statements to police were admissible, noting, inter alia, that

Appellant, “went to the police station voluntarily to give information on the

murder.” TCO at 11.2
____________________________________________


2
  On direct appeal to this Court, we rejected Appellant’s challenge to the
suppression court’s ruling. In doing so, we noted our agreement with the
suppression court’s rationale, and also stressed that Appellant “was an
informational witness who voluntarily contacted police; he was free to leave
[the polices station] at any time; he knowingly and intelligently waived his
rights; his interviews were actually very short; he was fed and rested.”
Commonwealth v. Savage, No. 944 EDA 2007, unpublished memorandum
at 4 (Pa. Super. filed April 25, 2008).



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       Now, Appellant contends that his trial counsel was ineffective for not

presenting, at the suppression hearing, the testimony of his father, Wayne

Savage (hereinafter “Mr. Savage”) and Jessica Watson (hereinafter “Ms.

Watson”). According to Appellant, these witnesses would have testified that

Appellant did not voluntarily go with Officer Davis to the police station to

speak with homicide detectives. In an affidavit drafted by Mr. Savage and

attached to Appellant’s pro se petition, Mr. Savage claims that on the

morning of April 25, 2015, he and Appellant were in Mr. Savage’s vehicle

when they encountered Officer Davis on the street. Officer Davis told them

that Appellant must come to the homicide division to speak to detectives. At

that point, Appellant informed Officer Davis that he was not going to speak

to police until he contacted an attorney. Officer Davis then stepped in front

of Mr. Savage’s vehicle, preventing Appellant and Mr. Savage from leaving.

Officer Davis called for backup officers, who physically removed Appellant

from Mr. Savage’s van. Appellant was then placed in handcuffs, put in the

back of a police car, and transported to the police station. Ms. Watson also

submitted an affidavit, which Appellant attached to his pro se petition. Ms.

Watson’s affidavit corroborates Mr. Savage’s version of events.3
____________________________________________


3
 While Officer Davis was not called to the stand at the suppression hearing,
we note that his trial testimony corroborates, in large part, Mr. Savage’s and
Ms. Watson’s version of events:

       [The Commonwealth:] So you told [Appellant] that homicide
       detectives wanted to talk to him about [the murder]?
(Footnote Continued Next Page)


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J-S19006-16


                       _______________________
(Footnote Continued)

      [Officer Davis:] Yes, I did.

      [The Commonwealth:] Then what happened, Officer Davis?

      [Officer Davis:] He made a phone call to his father. …
      [A]pproximately 15 minutes later, his father pulled up and told
      [Appellant] to get in the car.

      [The Commonwealth:] When you told [Appellant] that he needed
      to go to Homicide, what was his response to that?

      [Officer Davis:] He pretty much got nervous and jittery and
      didn’t want to go.

      [The Commonwealth:] Did he tell you he didn’t want to go?

      [Officer Davis:] No.

      [The Commonwealth:] How do you know he didn’t want to go?

      [Officer Davis:] Because he jumped in his father’s car.

      [The Commonwealth:] Did his father say anything when he
      pulled up in the car, when [Appellant] jumped in?

      …

      [Officer Davis:] His father told me his son wasn’t going down to
      Homicide and he was going to make a couple phone calls.

      [The Commonwealth:] At this point, where was [Appellant]?

      [Officer Davis:] He was in the passenger’s seat of his father’s
      car.

      …

      [The Commonwealth:] So when [Appellant’s] father told you that
      his son wasn’t going to Homicide and they were going to make
      some calls first, what did you do?

      [Officer Davis:] I told him that the homicide detectives
      wanted to talk to him and he cannot leave. At which time, I
      got on my cell phone and I called for backup.

      …
(Footnote Continued Next Page)


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J-S19006-16



      According to Appellant, Mr. Savage’s and Ms. Watson’s testimony

proves that he was illegally arrested prior to going to the police station and,

therefore, his statements to police would have been suppressed as fruit of

that illegal arrest.     Alternatively, Appellant contends that these witnesses’

testimony about the circumstances leading up to Appellant’s arrival at the

police station would have cast “serious doubt” on the suppression court’s

“important finding regarding [Appellant’s] voluntarily coming in and speaking

to detectives.” Appellant’s Brief at 18. Consequently, Appellant avers that

defense counsel was ineffective for not presenting these witnesses.

      In rejecting Appellant’s claim, the PCRA court solely concluded that

Appellant was not prejudiced. The court explained:

                       _______________________
(Footnote Continued)

      [The Commonwealth:] So you told him I am a cop and your
      son needs to go to Homicide?

      [Officer Davis:] Yes, I did.

      …

      [The Commonwealth:] Did your backup arrive?

      [Officer Davis:] They arrived pretty fast, yes.

      [The Commonwealth:] Do you know how [Appellant] was then
      taken to or transported to Homicide?

      [Officer Davis:] I believe, if I am not mistaken, he was
      transported down to Homicide in the patrol wagon.

N.T. Trial, 12/6/06, at 31-33 (emphasis added).




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J-S19006-16


            [Appellant] asserts that his father and his girlfriend would
     have testified that police handcuffed Appellant before
     transporting him to police headquarters to be interviewed by
     detectives. He claims that this testimony would establish that
     Appellant was in custody at the time he was interviewed and
     confessed to his involvement in the murder. This contradicts the
     evidence presented at the suppression hearing and the findings
     of the suppression court that Appellant voluntarily met with
     Officer Davis; that he told [Officer] Davis that he knew who
     committed the murder; and that he voluntarily accompanied
     [Officer] Davis to police headquarters to be interviewed by
     detectives. The suppression court further found that Appellant
     was not in custody at the time he was interviewed by detectives
     and was not in custody when he confessed to his involvement in
     the murder. In fact, Officer Davis escorted Appellant through
     the front door; Appellant signed the log book as a visiting
     witness, and was then placed in an interview room. At all times
     relevant, he was free to leave.           The suppression court,
     considering the totality of the circumstances, found that
     Appellant’s confession was knowing and voluntary. The absence
     of the testimony of Appellant’s father and his girlfriend did not
     prejudice Appellant so as to deny him a fair trial. He is not
     entitled to PCRA relief. Error was not committed.

PCO at 4-5 (citation omitted).

     The PCRA court concludes that the evidence presented at the

suppression hearing contradicts Mr. Savage’s and Ms. Watson’s version of

events. As Appellant stresses, the contradictory nature of these witnesses’

claims is the very reason why his trial counsel should have presented their

testimony at the suppression hearing to cast doubt on the voluntariness of

his statements to police. Moreover, while the PCRA court alludes that Mr.

Savage’s and Ms. Watson’s claims were wholly incredible, the court did not

conduct   an   evidentiary   hearing,   and   made   no   specific   credibility

determinations in its opinion. Our Supreme Court “has made clear that, in

cases where the PCRA court declined to hold a hearing, and where an

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J-S19006-16



assessment    of   witness   testimony   was   essential   to   a   petitioner's

ineffectiveness claims, the PCRA court must make specific credibility

determinations.” Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa.

2009) (citation omitted).

      Additionally, while we acknowledge that this Court is bound by the

PCRA court’s credibility determinations, that is only true where they are

supported by the record. Commonwealth v. Medina, 92 A.3d 1210, 1214

(Pa. Super. 2014) (“The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”). Here, from the PCRA

court’s decision, we can only glean that the court found Mr. Savage’s and

Ms. Watson’s claims incredible because they contradicted “the evidence

presented at the suppression hearing….” PCO at 5. This is inaccurate, as

there was no evidence presented at the suppression hearing pertaining to

the interaction between Appellant and Officer Davis before Appellant arrived

at the police station.   The only witness who testified at the suppression

hearing was Philadelphia Police Detective Kevin Judge, who first encountered

Appellant at the police station at “approximately 9:00 a.m.”               N.T.

Suppression Hearing at 18.    The detective testified that “police personnel”

brought Appellant to the station at approximately 7:46 a.m. and, upon

arrival, Appellant walked in through the front door, signed into the visitor’s

log book, and was seated in the homicide unit’s waiting area. The detective

did not – and could not – offer any testimony regarding Appellant’s initial

contact with Officer Davis, which led to Appellant’s being transported to the

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J-S19006-16



police station. Therefore, the PCRA court is incorrect that Detective Judge’s

testimony about what happened after Appellant arrived at the police station

contradicted the claims set forth in Mr. Savage’s and Ms. Watson’s affidavits,

which pertained only to what occurred prior to Appellant’s being brought to

the station. Further, Officer Davis’ testimony at trial also calls into question

the PCRA court’s rejection of Mr. Savage’s and Ms. Watson’s statements, as

Officer Davis’ testimony corroborates that Appellant did not voluntarily go

with police to speak to the homicide detectives.

       In sum, we conclude that the PCRA court erred by not rendering a

specific credibility determination regarding the claims presented in Mr.

Savage’s and Ms. Watson’s affidavits. To the extent that the court’s opinion

indicates that it rejected those witnesses’ claims because the evidence at the

suppression hearing contradicts them, the record does not support that

determination.      While we acknowledge that we can affirm a PCRA court’s

decision on any basis,4 we are unable do so in this case. The PCRA court’s

analysis of the prejudice prong is flawed; the court did not analyze the other

two prongs of the ineffectiveness test, nor the three remaining prongs of

proving ineffectiveness for failure to call a witness; no evidentiary hearing

____________________________________________


4
  Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (stating
“this Court may affirm the decision of the PCRA [c]ourt if it is correct on any
basis”) (citing Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000);
Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).




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was conducted; and no explicit credibility determinations were set forth in

the court’s opinion.      Under these circumstances, further assessment by the

PCRA court is required.

        Moreover, we agree with Appellant that there are genuine issues of

material fact concerning the credibility of Mr. Savage and Ms. Watson, and

whether their claims, if believed, demonstrate that Appellant was illegally

arrested prior to speaking to police.          If he was, there are also issues of

material fact regarding whether his statements to police would have been

suppressed due to that illegal arrest.5 And, finally, a question could remain

regarding the reasonableness of trial counsel’s failure to call Mr. Savage and




____________________________________________


5
    As our Supreme Court has explained,

        not all confessions or admissions secured from an illegally
        arrested person are per se inadmissible as trial evidence.
        Whether such evidence is admissible, we noted, depends on the
        facts in each case, considering the following factors: (1) whether
        Miranda [v. Arizona, 384 U.S. 436 (1966),] warnings were
        given; (2) the temporal proximity of the arrest and the
        confession; (3) the presence of intervening circumstances; and,
        (4) the purpose and flagrancy of the official misconduct. The
        voluntariness of the statement is, of course, a threshold
        requirement, and the confession must also be free of any
        element of coerciveness due to the unlawful arrest.

Commonwealth v. Johnson, 86 A.3d 182, 190-91 (Pa. 2014) (internal
citations and quotation marks omitted).




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Ms. Watson to the stand at the suppression hearing. Accordingly, we direct

the PCRA court to conduct an evidentiary hearing upon remand.6

       Order vacated. Case remanded for further proceedings.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2016




____________________________________________


6
   The Commonwealth argues that no hearing is warranted because
Appellant’s “offer of proof was defective.” Commonwealth’s Brief at 9. The
Commonwealth then discusses several ostensible inadequacies of Appellant’s
petition. However, the PCRA court did not address any of these purported
deficiencies in Appellant’s petition. Furthermore, Appellant obtained new
PCRA counsel after filing his notice of appeal; thus, the PCRA court has the
discretion, upon remand, to permit current counsel to amend Appellant’s
petition. Accordingly, it is not appropriate, at this juncture, to determine
whether Appellant’s petition has any deficiencies that would preclude an
evidentiary hearing or post-conviction relief.




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