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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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