Com. v. Newman, D.

J-S12019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
:
DESHAWN NEWMAN :
: No. 307 EDA 2021
Appellant

Appeal from the PCRA Order Entered April 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001229-2013

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED MAY 19, 2022

Deshawn Newman challenges the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We vacate the PCRA

court’s order and remand for further proceedings.

This Court previously detailed the factual and procedural history of this

case, wherein Appellant and his co-conspirator, Tyrek Scale, were convicted

of first-degree murder, conspiracy, and other crimes related to the shooting

death of Wali Patrick. See Commonwealth v. Newman, 156 A.3d 353

(Pa.Super. 2016) (unpublished memorandum). Of relevance to the issues

raised in this appeal, one of the witnesses at trial was John Curry, who saw

Appellant and Scale exit a white Suzuki, walk towards the victim’s home,

heard four gunshots, and saw Appellant and Scale return to the vehicle, which

sped away. Mr. Curry called 911. A police chase ensued. The Suzuki crashed
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and Appellant and Scale fled on foot, dropping what appeared to be firearms.

Ultimately, the police apprehended Appellant and Scale. Mr. Curry was

escorted to the crash site and identified Appellant, Scale, and the Suzuki.

Additionally, ballistic evidence established that the discarded firearms were

involved in the shooting.

Appellant and Scale proceeded to a joint jury trial. The first jury

deadlocked and the second jury convicted Appellant and Scale as indicated

hereinabove. Appellant was sentenced to life imprisonment without the

possibility of parole. On direct appeal, this Court affirmed his judgment of

sentence. In 2017, Appellant filed pro se a PCRA petition raising several

claims (“2017 PCRA petition”). The PCRA court appointed Joseph Schultz,

Esquire (“PCRA counsel”), who sought and was granted reinstatement of

Appellant’s right to pursue appellate review in our Supreme Court nunc pro

tunc. Appellant filed a petition for allowance of appeal nunc pro tunc, which

our Supreme Court denied. Id., appeal denied, 186 A.3d 369 (Pa. 2018).

Thereafter, Appellant timely filed pro se the instant PCRA petition, which

we treat as his first (“2018 petition”). See Commonwealth v. Turner, 73

A.3d 1283, 1286 (Pa.Super. 2013) (citation and footnote omitted) (“This Court

has explained that when a PCRA petitioner’s direct appeal rights are reinstated

nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be

considered a first PCRA petition for timeliness purposes.”). The PCRA court

re-appointed PCRA counsel. PCRA counsel reviewed the 2017 PCRA petition,

the 2018 PCRA petition, and various letters Appellant had sent to counsel,

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before filing a motion to withdraw as counsel and no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued

notice of its intent to dismiss the 2018 PCRA petition pursuant to Pa.R.Crim.P.

907. Appellant pro se filed a response to the Rule 907 notice, alleging PCRA

counsel’s ineffectiveness.1 On April 11, 2019, the PCRA court dismissed the

2018 PCRA petition and granted counsel’s motion to withdraw.

Almost two years later, Appellant retained counsel and filed a PCRA

petition seeking reinstatement of his PCRA appellate rights nunc pro tunc

(“2021 PCRA petition”). Therein, Appellant alleged that he attempted to

timely file pro se an appeal from the order dismissing the 2018 PCRA petition.

However, for unknown reasons, those mailings were not docketed. Upon

inquiring about the status of his appeal, Appellant learned that the appeal had

not been properly filed. He then retained the services of Daniel Silverman,

Esquire, to assist with seeking reinstatement of his PCRA appeal rights nunc

pro tunc. Recognizing that the petition was patently untimely, Appellant

invoked the governmental interference and newly-discovered fact exceptions

to the PCRA time-bar. See 42 Pa.C.S. § 6545(b)(1)(i-ii). After concluding that

Appellant satisfied the newly-discovered fact exception, the PCRA court

granted Appellant’s petition and reinstated his right to file nunc pro tunc an

appeal from the April 11, 2019 order dismissing the 2018 PCRA petition.
____________________________________________

1 These initial allegations of PCRA counsel’s ineffectiveness are distinct from
those raised in Appellant’s subsequent Pa.R.A.P. 1925(b) statement.

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This timely appeal nunc pro tunc followed. Appellant included a concise

statement pursuant to Pa.R.A.P. 1925(b) within his notice of appeal. He

raised, inter alia, several layered claims of ineffective assistance of PCRA

counsel for failing to investigate and identify various ineffectiveness claims as

to trial and/or appellate counsel. Appellant argued that his claims alleging

PCRA counsel’s ineffectiveness were preserved because he could not raise

them while still represented by PCRA counsel and his Rule 1925(b) statement

was therefore the first opportunity to raise these claims. See Rule 1925(b)

Statement, 2/6/21, at 5-6. Appellant filed a supplemental Rule 1925(b)

statement asking the PCRA court to recommend that the matter be remanded

to the PCRA court for an evidentiary hearing on these claims.

In its Rule 1925(a) opinion, the PCRA court concluded that the claims of

layered ineffective assistance of counsel that Appellant raised in his Rule

1925(b) statement were waived for failing to include them in the 2018 PCRA

petition or in an amended petition therefrom. See PCRA Court Opinion,

4/6/21, at 3. Despite this, the PCRA court conducted an alternative analysis

and found the underlying claims of trial and/or appellate counsel’s

ineffectiveness to be meritless. Id. at 3-10.

Appellant raises the following issues for our consideration: 2

____________________________________________

2 For context, we recount briefly the relevant procedural history that
transpired between the PCRA court’s Rule 1925(a) opinion and Appellant’s
brief. Specifically, Attorney Silverman sought to withdraw in this Court as his
retention was limited to the 2021 PCRA petition and preserving Appellant’s
(Footnote Continued Next Page)

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1. Should this Court defer consideration of this appeal until after
the Pennsylvania Supreme Court issues its ruling in
Commonwealth v. Aaron Bradley, No. 37 EAP 2020, where
the court will decide what the proper mechanism is to enforce
the state rule-based right of litigants to raise the effective
assistance of initial PCRA counsel?

a. Did the lower court err in finding waived all state
rule-based claims of initial counsel’s ineffective
assistance because Appellant raised those claims
for the first time in his Rule 1925(b) Statement
when that was his first and only opportunity to do
so?

2. Was initial PCRA counsel ineffective for failing to identify the claim
that (a) direct appeal counsel was ineffective for failing to raise
the claim that the trial court violated the public-trial guarantee by
closing the courtroom during counsel’s closing arguments without
notifying the parties and (b) trial counsel was ineffective for failing
to object when the trial court also closed the courtroom during a
pre-trial motion, without first considering less drastic remedies or
adequately setting down her reasons for doing so?

____________________________________________

PCRA appeal rights. We granted counsel’s motion and remanded for the PCRA
court to determine if new counsel should be appointed for purposes of this
PCRA appeal. See Per Curiam Order, 4/13/21. On remand, the PCRA court
appointed Earl G. Kauffmann, Esquire, to represent Appellant. Attorney
Kauffmann subsequently sought to withdraw as counsel after Appellant once
again retained the services of Attorney Silverman. Around this same time,
Attorney Silverman filed an application for remand on Appellant’s behalf to
supplement his Rule 1925(b) statement. This Court granted Attorney
Kauffmann’s motion to withdraw, granted Appellant’s application for remand,
and directed the PCRA court to file a supplemental opinion. See Per Curiam
Order, 9/28/21. Appellant filed a supplemental Rule 1925(b) statement
modifying one of the claims previously set forth. The PCRA court, in its
supplemental opinion, contended that the modified claim was waived for
failing to include it in the initial Rule 1925(b) statement and for failing to
include it in the 2018 PCRA petition. See Supplemental PCRA Court Opinion,
10/7/21, at 3. In the alternative, the PCRA court addressed the claim and
found it meritless. Id. at 3-4. A supplemental record was submitted to this
Court and the briefing schedule was reinstated.

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3. Was initial PCRA counsel ineffective for failing to identify the claim
that trial counsel was ineffective for failing to present evidence
that Appellant enjoyed an excellent reputation for being a peaceful
and non-violent person?

4. Was initial PCRA counsel ineffective for failing to identify the claim
that direct appeal counsel was ineffective for failing to raise the
claim that the trial court erred in denying the pre-trial motion to
suppress (a) the out-of-court identification of eyewitness John
Curry on the ground that the show-up procedure was
unnecessarily suggestive; and (b) the derivative in-court
identifications on the grounds that they were tainted fruits of the
initial illegality where Curry did not have an independent basis on
which to make those identifications adequate to purge the taint?

Appellant’s brief at 3-4.3

As noted by the Commonwealth in its brief and Appellant in his reply

brief, our Supreme Court decided Commonwealth v. Bradley, 261 A.3d 381

(Pa. 2021), during the pendency of this appeal. By way of background, a

petitioner has a rule-based right to the appointment and effective assistance

of counsel for a first PCRA petition. See id. at 391 (citations omitted). Prior

to Bradley, our courts had held that “a petitioner was required to raise PCRA

counsel’s ineffectiveness in response to the PCRA court’s Rule 907 notice” and

that such a claim could not be raised for the first time on appeal. Id. at 397

(citations omitted).

Here, Appellant was entitled to the appointment and effective assistance

of counsel for the 2018 PCRA petition, as it was considered his first.

Consistent with then-existing precedent, Appellant purported to raise PCRA

____________________________________________

3Appellant included a footnote that all claims alleged violations of both the
United States and Pennsylvania constitutions. Appellant’s brief at 3 n.1.

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counsel’s ineffectiveness in response to the PCRA court’s Rule 907 notice.

However, PCRA counsel had not yet been permitted to withdraw. “A petitioner

who is already represented by PCRA counsel cannot represent himself, or seek

concurrent representation by an additional attorney, as doing so would be

precluded by the prohibition on hybrid representation.” Id. at 398 (citation

omitted). Thus, Appellant’s pro se response was a legal nullity. See

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper

response to any pro se pleading is to refer the pleading to counsel, and to

take no further action on the pro se pleading unless counsel forwards a

motion.”).4

In Bradley, our Supreme Court found the then-existing approach of

utilizing Rule 907 as the sole mechanism for challenging PCRA counsel’s

ineffectiveness functionally unsound and abandoned it. Id. at 398, 400-01.

In its place, the Court implemented “a modified and flexible . . . approach

allowing a petitioner to raise claims of ineffective PCRA counsel at the first

opportunity, even if on appeal.” Id. at 405.

Instantly, Appellant raised the claims challenging PCRA counsel’s

ineffectiveness in his Rule 1925(b) statement. Upon review of the certified

record and Bradley, we agree with Appellant and the Commonwealth that the

Rule 1925(b) statement was the earliest opportunity to do so. Thus, we reject
____________________________________________

4 We note that, as discussed infra, in Commonwealth v. Bradley, 261 A.3d
381 (Pa. 2021), our Supreme Court rejected the Rule 907 approach for
challenges to the effective assistance of counsel that had been extended by,
inter alia, Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).

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the PCRA court’s assertion that the claims are waived and we turn our

attention to their merits.

On appeal from a PCRA court’s decision, our scope of review is “limited

to examining whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error. We view

the findings of the PCRA court and the evidence of record in a light most

favorable to the prevailing party.” Commonwealth v. Johnson, 236 A.3d

63, 68 (Pa.Super. 2020) (en banc) (cleaned up). The PCRA court’s credibility

determinations are binding on this Court when supported by the certified

record, but we review its legal conclusions de novo. Id. (citation omitted).

Appellant challenges the effective assistance of trial, appellate, and

PCRA counsel. Preliminarily, we observe that counsel is presumed to be

effective and the petitioner bears the burden of proving otherwise. Id.

(citation omitted). To do so, he must establish the following three elements:

(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.

Id. (citations omitted). Failure to prove any of the three elements will result

in dismissal of the ineffectiveness claim. Id. (citation omitted).

Specifically, Appellant’s claims focus on PCRA counsel’s ineffectiveness

for failing to raise claims as to the ineffectiveness of appellate and/or trial

counsel. “In determining a layered claim of ineffectiveness, the critical inquiry

is whether the first attorney that the defendant asserts was ineffective did, in

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fact, render ineffective assistance of counsel. If that attorney was effective,

then subsequent counsel cannot be deemed ineffective for failing to raise the

underlying issue.” Commonwealth v. Burkett, 5 A.3d 1260, 1270

(Pa.Super. 2010).

For Appellant’s claims, the first attorney that purportedly rendered

ineffective assistance is, respectively, as follows: (1) trial counsel for failing

to object to the closing of the courtroom during the pre-trial motion; (2)

appellate counsel for failing to raise a challenge on appeal to the trial court’s

surreptitious closing of the courtroom during closing arguments; (3) trial

counsel for not presenting character evidence that Appellant enjoyed a

reputation for being peaceful and non-violent; and (4) appellate counsel for

failing to challenge the pre-trial suppression ruling on the grounds that the

show-up was unnecessarily suggestive and the subsequent in-court

identification was tainted. In its Rule 1925(a) opinion, the PCRA court found

these claims waived but considered, in the alternative, the merits of

Appellant’s underlying claims of ineffective assistance of appellate and/or trial

counsel.

In permitting petitioners to raise claims of PCRA counsel’s

ineffectiveness for the first time on appeal, the Bradley Court recognized

remand may sometimes be necessary:

In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such

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claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere boilerplate assertions of PCRA counsel’s
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel’s stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.

Bradley, supra at 402 (cleaned up). In other words, “appellate courts will

have the ability to grant or deny relief on straightforward claims, as well as

the power to remand to the PCRA court for the development of the record.”

Id. at 403. Thus, our Supreme Court reaffirmed the preference for evidentiary

hearings and the “general rule” that “a lawyer should not be held ineffective

without first having an opportunity to address the accusation in some fashion.”

Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010), overruled on

other grounds by Bradley, supra. Moreover, the appropriate forum for the

development of an evidentiary record on PCRA claims is the PCRA court as the

appellate courts do not serve as fact-finding courts. See Commonwealth v.

Shaw, 247 A.3d 1008, 1017 (Pa. 2021) (citations omitted).

As discussed supra, Appellant raised PCRA counsel’s ineffectiveness at

the earliest opportunity. Additionally, his claims are not mere boilerplate

assertions. See Bradley, supra, at 402. The PCRA court considered the

merits of the ineffectiveness claims in the alternative, finding that Appellant

had failed to establish either the arguable merit of the underlying claim or

prejudice. Since the court found trial counsel and appellate counsel effective,

PCRA counsel could not be ineffective for failing to challenge their

effectiveness. However, because the claims were raised for the first time on

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appeal, no evidentiary hearing was held. Thus, Appellant has not had the

opportunity to develop these claims outside the argument in his brief, which

occurred after the PCRA court found the claims to be meritless. With this

backdrop, we consider each claim in turn to determine whether remand is

necessary.

We begin with Appellant’s first two claims regarding closure of the

courtroom during the pre-trial motion and Appellant’s closing argument. “A

defendant has a Sixth Amendment right to a trial that is open to members of

the public.” Commonwealth v. Jordan, 212 A.3d 91, 101 (Pa.Super. 2019)

(citation omitted). The United States Supreme Court has set forth that while

a defendant has the right to a public trial, a court may close the courtroom if

the following factors (“Waller factors”) are met: “(1) there is ‘an overriding

interest that is likely to be prejudiced,’ (2) the closure is ‘no broader than

necessary to protect that interest,’ (3) the trial court considers ‘reasonable

alternatives’ to closure, and (4) the trial court makes ‘findings adequate to

support the closure.’” Id. (quoting Waller v. Georgia, 467 U.S. 39, 48

(1984)). “The violation of the right to a public trial constitutes a structural

defect, a specific type of constitutional error warranting a new trial without

any showing of prejudice.” Id. at 103 (citation omitted). However, in

Pennsylvania, when the violation is raised in connection with an ineffective

assistance of counsel claim, the petitioner must establish prejudice. See

Commonwealth v. Rega, 70 A.3d 777, 787 (Pa. 2013) (citation omitted).

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Appellant’s first layered claim begins with trial counsel’s ineffectiveness

for failing to object to the closing of the courtroom during the pre-trial motion

hearing. Critically, in his brief, Appellant asks this Court to ignore our case

law requiring proof of prejudice in connection with an ineffective assistance of

counsel claim for failing to object to a courtroom closure. See Appellant’s

brief at 36. This we cannot do. As Appellant failed to present any argument

that he was prejudiced by trial counsel’s inaction, relief is “plainly unavailable

as a matter of law” and we need not remand to the PCRA court for further

consideration of this claim. See Bradley, supra at 402.

We next turn to Appellant’s layered claim that begins with appellate

counsel’s ineffectiveness for failing to argue on direct appeal that the trial

court erred in closing the courtroom during closing arguments. By way of

background, unbeknownst to trial counsel, the trial court apparently directed

court staff to stop allowing individuals into the courtroom during the defense

closing arguments. The only evidence of this is that the trial court thereafter

advised counsel of what it had done. See N.T., 4/17/15, at 97-98.

In concluding Appellant’s layered ineffectiveness claim was meritless,

the PCRA court found the underlying claim to be without merit. Specifically,

the court determined that the courtroom was never closed because the court

merely barred re-entry or, in the alternative, the closure was justified. See

PCRA Court Opinion, 4/6/21, at 8-9. Additionally, the PCRA court concluded

that Appellant failed to prove prejudice. Id. at 9. Finally, according to the

PCRA court, trial counsel failed to object to the closure and therefore appellate

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counsel could not be deemed ineffective for failing to raise a waived claim.

PCRA Court Opinion, 10/7/21, at 4.

Contrarily, Appellant argues that because trial counsel was unaware the

closure had happened, he was unable to object and therefore it was appellate

counsel who was first ineffective for failing to raise the substantive claim as

to this closure on direct appeal. See Appellant’s brief at 20, 30. Moreover,

and unlike the prior claim, Appellant argues that he was prejudiced by

appellate counsel’s failure to raise this claim on appeal because, if successful,

his conviction would have been vacated. See Appellant’s brief at 33.

Based on the certified record, it is unclear whether the courtroom was

in fact closed, whether trial counsel was aware of the closure before it

happened, and whether counsel had an opportunity to preserve the issue at

trial or if it could only be raised for the first time on appeal. Given these

ambiguities, the fact that Appellant raised more than a boilerplate assertion

of layered ineffectiveness, and relief is not plainly unavailable as a matter of

law, we conclude that the most prudent course of action is to remand this

claim to the PCRA court. Upon remand, the PCRA court will be best equipped

to consider this issue in the first instance with the benefit of an amended PCRA

petition and, if warranted, an evidentiary hearing.

We next turn to Appellant’s third claim regarding trial counsel’s failure

to present character evidence. A criminal defendant may offer evidence of a

pertinent character trait as substantive evidence that he did not commit a

charged crime. See Pa.R.E. 404(a)(2)(A). “Evidence of good character is

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substantive and positive evidence, not a mere make weight to be considered

in a doubtful case, and is an independent factor which may of itself engender

reasonable doubt or produce a conclusion of innocence.” Commonwealth v.

Goodmond, 190 A.3d 1197, 1201 (Pa.Super. 2018) (cleaned up). However,

“[t]he failure to call character witnesses does not constitute per se

ineffectiveness.” Commonwealth v. Treiber, 121 A.3d 435, 463 (Pa. 2015).

Rather, to succeed on such a claim, a petitioner must establish the following:

(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.

Goodmond, supra at 1202 (cleaned up).

Critically, the primary reason the PCRA court concluded that Appellant’s

claim failed was because Appellant did not establish that any witness was

willing and able to testify that he had a reputation for peacefulness and non-

violence. PCRA Court Opinion, 4/6/21, at 6. In his brief, however, Appellant

included declarations from three witnesses that claimed to be willing and able

to provide such testimony. See Appellant’s brief at Exhibits A-C.

Assuming such a witness existed, the PCRA court concluded that

Appellant’s claim would still fail because he could not establish prejudice given

the strength of the physical and eyewitness evidence against him. See PCRA

Court Opinion, 4/6/21, at 6. Appellant disagrees with the purported strength

of this evidence as the initial jury, on the same evidence, was unable to reach

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a verdict. See Appellant’s brief at 42. Since character evidence itself can

create reasonable doubt, Appellant avers that he was prejudiced by counsel’s

inaction. Id.

Given the potential prejudice, Appellant’s presentation of witness

declarations, the uncertainty as to whether counsel knew about these

witnesses and their willingness to testify,5 and the PCRA court’s silence as to

the reasonableness of counsel’s inaction, we conclude that relief is not plainly

unavailable as a matter of law. See Colavita, supra; Shaw, supra.

Accordingly, remand is also necessary for this claim.

Finally, we address Appellant’s claims regarding appellate counsel’s

failure to challenge the pre-trial suppression ruling on appeal, mindful of the

following principles:

In reviewing the propriety of identification evidence, the central
inquiry is whether, under the totality of the circumstances,
the identification was reliable. Our Supreme Court has held that
on-scene identifications are not only consistent with due process
but also enhance the reliability of identifications as they occur
when events are fresh in a witness’s mind.
____________________________________________

5It is also unclear from the certified record if counsel spoke to Appellant about
whether he had any character witnesses to present. Instead of a detailed
colloquy regarding the importance of character witnesses, the following brief
exchange occurred:

THE COURT: [Appellant], any other witnesses other than the
one that Mr. Patrizio is calling [regarding your
limp]?

[APPELLANT]: No.

N.T., 4/17/15, at 17.

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In deciding whether to admit contested identification evidence,
the trial court must consider: (1) the opportunity of the witness
to view the perpetrator at the time of the crime; (2) the witness’
degree of attention; (3) the accuracy of his prior description of the
perpetrator at the confrontation; (4) the level of certainty
demonstrated at the confrontation; and (5) the time between the
crime and confrontation. Suggestiveness in the identification
process is but one factor to be considered in determining the
admissibility of such evidence and will not warrant exclusion
absent other factors.

The suppression court may suppress an out-of-court identification
only where, after considering all the relevant circumstances, the
facts demonstrate that the identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. The most important
factor in addressing the reliability of an identification is the
witness’s opportunity to observe the perpetrator at the time of the
crime.

Commonwealth v. Milburn, 191 A.3d 891, 899–900 (Pa.Super. 2018)

(cleaned up).

Briefly, this issue concerns the identification of Appellant by Mr. Curry

after Appellant was apprehended by police. In concluding that the underlying

claim lacked arguable merit, the PCRA court found that the show-up procedure

was not unduly suggestive and that Mr. Curry had a strong basis for his

identification:

Curry first saw the [two men] in a well-lit area, only fifteen feet
from where he was standing in his home. Curry closely observed
them before and after they went to Kinsey Street, and after they
drove past his home in their attempt to flee. Curry told officers
that he would be able to identify them if given the opportunity.
Curry’s identification occurred only a half hour after first seeing
[Appellant] and his co-defendant, and in making the identification,
Curry displayed a high degree of certainty.

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PCRA Court Opinion, 4/6/21, at 5 (record citations omitted). As the PCRA

court found the initial identification to be sound, it unsurprisingly did not

address the merits of Appellant’s derivative claim that the subsequent in-court

identification was tainted.

The evidentiary record before us is incomplete. While it includes

Appellant’s motion to suppress, where he preserved both claims, the certified

record does not contain the transcript of Appellant’s suppression hearing.

Therefore, we are unable to evaluate whether the PCRA court’s conclusion that

the underlying claim lacked merit is supported by the record, and therefore

also cannot evaluate Appellant’s derivative claim as to the in-court

identification being tainted by the initial show-up procedure. Due to the

insufficient record for these claims, we deem remand necessary here as well.

Based on the foregoing, we vacate the order denying the 2018 PCRA

petition and remand this case to the PCRA court for Appellant to create an

evidentiary record in conjunction with his claims that PCRA counsel was

ineffective for not ascertaining or raising (1) appellate counsel’s

ineffectiveness for failing to argue that the trial court erred in closing the

courtroom during closing arguments, (2) trial counsel’s ineffectiveness for

failing to present character witnesses, and (3) appellate counsel’s

ineffectiveness for failing to challenge the pre-trial suppression ruling. Upon

remand, counsel should file an amended petition on Appellant’s behalf,

wherein he can fully develop these claims. Thereafter, the PCRA court must

decide whether to conduct an evidentiary hearing on the new claims.

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Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2022

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