Com. v. Johnson, D.

J-S15039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANIEL RASHEAD JOHNSON :

:

Appellant : No. 1493 MDA 2021

Appeal from the PCRA Order Entered August 12, 2021

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0003973-2008

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 07, 2024

Daniel Rashead Johnson appeals from the order that dismissed his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We reverse

and remand for a new trial.

We summarized the background of this case as follows upon

consideration of Appellant’s direct appeal:

On February 29, 2008, Mylik Young was killed when struck

by a bullet shot from an assault rifle while seated in his vehicle

outside of the Jazzland Bar, located in the 1900 block of Walnut

Street in Harrisburg. When police arrived, Andre Pharris was

standing nearby and identified the victim while indicating that he

[had] been inside drinking with the victim. According to Mr.

Pharris, he phoned [the victim] earlier in the evening and

discussed meeting him for a drink. The two men made tentative

plans to meet later in the evening. After a few hours had passed,

[the victim] called Mr. Pharris and told him he could pick him up

and go for a drink but that he would have time for just one. The

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 This matter was reassigned to this author on August 26, 2024.

J-S15039-23

two men fatefully chose the Jazzland Bar as their drinking

destination.

After arriving at the Jazzland, [the victim] ordered a beer

while Mr. Pharris ordered both a mixed drink and a beer. [The

victim] finished his beer before Mr. Pharris could finish both of his

drinks and then began speaking on the phone with his girlfriend

and told Mr. Pharris he would wait for him outside. A few minutes

later, Mr. Pharris left the bar only to hear gunshots ring out,

prompting him to duck for cover behind a van. When the gunfire

stopped, Mr. Pharris observed a vehicle with its headlights pointed

toward the bar. Two men jumped into the vehicle and it then sped

off. Mr. Pharris ran to [the victim]’s car and observed [him]

slumped over in the driver’s seat. Mr. Pharris then unzipped the

victim’s coat and, seeing a gunshot wound, applied pressure to

the wound while calling the police. Mr. Pharris then stayed with

the victim until the police arrived a few minutes later.

Earlier that day, Michael Brown, a resident of Harrisburg but

originally from Philadelphia, received a call from Vincent Hall-

Wadley, also of Harrisburg, who proposed that the two look for

some drug dealers to rob. Brown indicated his willingness to

participate in the endeavor but suggested they go to Philadelphia

to “get some muscle.” The two men then drove to Philadelphia

where they met up with and enticed both [A]ppellant [and]

another Philadelphia man, David Young, to join them.

The four men then returned to Harrisburg and began

searching for potential robbery victims. Along the way, they

stopped at the residence of Hall-Wadley, where they retrieved an

AK-47 assault style rifle. Their pursuit took them past the

Jazzland Bar,1 where they observed a vehicle belonging to a

reputed drug dealer known as “Twain” or “Twan.” Consequently,

the men parked the vehicle and entered the Jazzland Bar. Once

inside, Brown observed a man named Santos Gutierrez looking in

his direction. Brown and Gutierrez had a bit of prior antagonistic

history, and Brown took umbrage at the look given by Gutierrez.

After the two had words, bar staff intervened and broke up the

hostilities. Gutierrez, afraid that things might escalate, called his

brother, Ricardo Antequera, and asked him to bring a gun. Brown

overheard Gutierrez make the call requesting a gun and gave

[A]ppellant the keys to the vehicle so that he could get outside to

the car where the AK-47 was stowed.

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1 Prior to visiting the Jazzland Bar, the men had stopped at

a house from where marijuana was sold and another bar,

Rebound, where it was believed drug dealers could be

found. Hall-Wadley decided that he did not like the plan

that had been formulated relative to the marijuana house,

and no known drug dealers could be found at Rebound.

Shortly thereafter, Brown left with Young and ended up on

Walnut Street as they made their way back to the car. At that

point, Brown observed a SUV pull up and pass a gun to Gutierrez.

Meanwhile, [A]ppellant and Hall-Wadley were standing aside their

car; [A]ppellant was equipped with the AK-47. According to

Brown, when Gutierrez received the gun from his brother, he

cocked it and began walking toward Brown and Young. Soon

thereafter, gunfire broke out. Young and [A]ppellant began firing

in the direction of Gutierrez from their respective locations and

either Gutierrez, or someone with him, returned fire. Numerous

shots were fired, one of which struck the victim, who had been

sitting in his car talking on his cell phone when the gunfire

erupted.

When shots broke out, Brown ran down toward 18th Street.

After the gunfire stopped, [A]ppellant, Young, and Hall-Wadley

climbed in Brown’s car and fled the scene. A short distance away,

they encountered Brown, who then jumped in the vehicle. The

four men fled to Philadelphia, unsure of whether or not anyone

had been struck in the gunfire. However, [A]ppellant did

comment that he thought he might have hit someone, referring to

someone situated in a car who had “popped up,” and that if he

had struck someone, it was an accident.

Appellant was ultimately arrested on August 21, 2008 and

charged with, inter alia, criminal homicide and [recklessly

endangering another person (“REAP”)]. Appellant proceeded to a

jury trial held May 11-15, 2009. At the conclusion of the trial,

[A]ppellant was convicted of first[-]degree murder and REAP.

Appellant was immediately sentenced to life imprisonment on the

murder charge and a concurrent term of [six] to [twelve] months’

imprisonment on the REAP charge. [His direct appeal did not

result in any relief.]

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Commonwealth v. Johnson, 6 A.3d 571 (Pa.Super. 2010) (unpublished

memorandum at 1-4), appeal denied, 20 A.3d 485 (Pa. 2011), cert. denied

sub nom., 565 U.S. 837 (2011).

Appellant initiated the PCRA proceedings sub judice by filing a timely

pro se petition in 2011. Initially, the PCRA court appointed Jennifer Tobias,

Esquire, to represent him. After she filed a supplemental petition, the court

ordered her to locate Brown for an evidentiary hearing. Before that happened,

Attorney Tobias was permitted to withdraw and Jonathan Crisp, Esquire, was

appointed. Attorney Crisp pursued claims that the prosecution violated Brady

v. Maryland, 373 U.S. 83 (1963), and otherwise engaged in prosecutorial

misconduct. In particular, Appellant alleged that the Commonwealth failed to

fully disclose the benefits it offered Brown for testifying against Appellant, and

failed to correct his false testimony denying any agreement for favorable

treatment. The PCRA court held a hearing in April 2013, but left the record

open for Attorney Crisp to find Brown and to obtain surveillance video. The

PCRA judge then retired without disposing of the petition, and the matter was

reassigned to a new judge.

The new presiding judge held a status conference in May 2015 and again

provided additional time for the parties to locate Brown and the video footage.

Counsel for the parties communicated further about the matter until the

Commonwealth’s counsel left the District Attorney’s Office. Nothing further

occurred on the case until Appellant filed for a writ of mandamus in federal

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court in April 2019. The next activity in the PCRA court was Attorney Crisp’s

May 2021 motion to rule on the pending petition. As neither party had been

able to locate Brown or the video, they agreed to close the record. The PCRA

court entered an order on August 12, 2021, dismissing the petition upon

concluding there were no issues of material fact to be resolved and no relief

was due.

Appellant appealed and Kristen Weisenberger, Esquire, was appointed

to represent him. In this Court, Appellant pro se filed a motion to remand for

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

Therein, he asserted that he repeatedly attempted to contact Attorney

Weisenberger through calls, emails, text messages, and letters about seeking

a remand for him to challenge Attorney Crisp’s effectiveness pursuant to

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), but she did not

respond. The PCRA court scheduled a Grazier hearing, and this Court stayed

our briefing schedule pending the outcome thereof.

The PCRA court found that Appellant did not wish to represent himself,

and Attorney Weisenberger filed a brief in this Court pursuant to our re-issued

briefing schedule. However, because she did not include therein any of the

Bradley claims Appellant wished to raise, Appellant retained current PCRA

counsel to do so. Accordingly, PCRA counsel filed an application to strike

Attorney Weisenberger’s brief along with an application for remand pursuant

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to Bradley to pursue claims that Attorney Crisp was ineffective for failing to

raise eleven claims of trial counsel’s ineffectiveness.

On July 20, 2022, this Court entered a per curiam order granting both

requests. In particular, the order directed the prothonotary to strike Attorney

Weisenberger’s brief from the docket and remanded the case to the PCRA

court “for a hearing regarding the ineffectiveness claims raised in the

application.” Order, 7/20/22. Inexplicably, instead of vacating the prior ruling

and relinquishing jurisdiction to allow the PCRA court to enter a new

appealable order based upon its findings, this Court’s order retained

jurisdiction over the matter and provided as follows:

Following the hearing, the PCRA court shall issue its findings of

fact and conclusions of law regarding the ineffectiveness claims.

Appellant shall have [twenty-one] days following the filing of the

PCRA court’s findings to file a supplemental Pa.R.A.P. 1925(b)

statement related to the PCRA court’s ineffectiveness findings

only, and the PCRA court shall have [twenty-one] days from the

filing of the statement to file a supplemental opinion pursuant to

Pa.R.A.P. 1925(a). The PCRA court shall transmit the certified

record and the supplemental record to this Court within [ninety]

days of the date of this order.

Id.

The PCRA court held a three-day hearing at which Attorney Crisp and

Paul Muller, Esquire, who was both trial and direct appeal counsel,

testified. Upon this evidence, the PCRA court concluded that Appellant was

entitled to relief on three of his Bradley claims. Specifically, the court held

that each of the three prongs of the ineffectiveness test as announced in

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), was satisfied as to

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Appellant’s issues concerning the absence of certain jury instructions. See

PCRA Court Opinion, 12/13/22, at 9-22, 26-28. Since the court concluded

that the three proven ineffectiveness claims warranted a new trial, but it could

not directly grant relief because we had retained jurisdiction over the appeal

from the order denying Appellant’s PCRA petition, it recommended that this

Court grant Appellant a new trial based on the jury instruction claims. The

PCRA court rejected the rest of Appellant’s Bradley claims. Additionally, it

declined to opine further on the Brady claim that Attorney Crisp litigated prior

to the appeal because, inter alia, it concluded that the entitlement to relief on

the other issues rendered any Brady violations moot. Id. at 30.

Back in this Court, Appellant filed a brief urging us to: (1) follow the

PCRA court’s recommendation on the three jury-instruction Bradley claims

mentioned above, (2) conclude that the PCRA court erred in denying relief on

a different Bradley claim addressed in the remand proceedings, and (3) hold

that Attorney Crisp was ineffective for failing to competently litigate his Brady

and prosecutorial misconduct claims. For these reasons, Appellant asserts

that we should reverse the order that had dismissed his petition and grant

him relief. See Appellant’s brief at 8, 64. For its part, the Commonwealth

argues that we affirm the PCRA court’s initial order dismissing the Appellant’s

PCRA petition because none of his issues warrants relief. See

Commonwealth’s brief at 9, 33.

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Before considering the substantive issues, we address this Court’s

retention of jurisdiction when it remanded for the PCRA court to conduct its

inquiry. The proper procedure for an appellate court faced with Bradley

claims that cannot be resolved upon the existing record is to vacate the initial

order denying PCRA relief and to relinquish jurisdiction upon remanding to the

PCRA court so that the court can address the new claims and enter a final

order resolving the request for relief, after which any party aggrieved by that

final order may appeal from it.1 Since we did not follow the procedure in the

instant case, the PCRA court lacked the authority to alter the order upon which

our retained jurisdiction was founded.

____________________________________________

1 See, e.g., Commonwealth v. Parrish, 273 A.3d 989, 1007 (Pa. 2022)

(“Parrish is entitled to a remand to present evidence and argument to

substantiate his [Bradley claims]. Upon the PCRA court’s grant or denial of

this relief, if either Parrish or the Commonwealth appeal that determination,

the PCRA court should file a supplemental [Rule] 1925(a) opinion to address

that decision. Parrish’s ineffectiveness claims raised in the appeal from the

PCRA court’s denial of his previously-filed PCRA petitions will then be

considered.”); Commonwealth v. Greer, ___ A.3d ___, 2024 WL 3766085,

at *3 n.2 (Pa.Super. Aug. 13, 2024) (explaining that this Court was vacating

the prior PCRA order, remanding to the PCRA court, and relinquishing

jurisdiction, after the case had been remanded to us from our Supreme Court,

in order “to reinstate the [PCRA] court’s jurisdiction to take such action as it

finds necessary” to resolve the Bradley claims raised on appeal);

Commonwealth v. Lawrence, 309 A.3d 152, 156-57 (Pa.Super. 2024)

(vacating the order denying the PCRA petition and remanding for the court to

consider the Bradley claims raised on appeal and then to “enter a new final

order disposing of all claims [the a]ppellant has raised in connection with the

instant PCRA petition, after which any aggrieved party may seek appellate

review” (cleaned up)).

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However, we discern that the odd procedural posture does not preclude

us from reviewing the PCRA court’s findings and conclusions as to Appellant’s

Bradley claims. Rather than now vacating the order dismissing the petition

and remanding for the PCRA court to enter an order effectuating its findings

just to have the Commonwealth file a new appeal, for the sake of judicial

economy we will regard as done that which ought to have been done. That

is, we deem the petition to have been amended to raise the claims we

remanded for the PCRA court to adjudicate, and proceed to address the

parties’ arguments concerning the propriety of the PCRA court’s findings on

the various claims for relief. Accord McCormick v. Northeastern Bank of

Pennsylvania, 561 A.2d 328, 330 n.1 (Pa. 1989) (exercising jurisdiction over

appeal taken before the trial court’s verdict was reduced to judgment in the

interests of judicial economy rather than remanding or quashing).

Here, the PCRA court found that three of Appellant’s Bradley claims

entitled him to relief. To be precise, the court concluded that Attorney Crisp

was ineffective in neglecting to allege that Attorney Muller was ineffective for:

(1) failing to object to the trial court’s refusal and/or denial to

instruct the jury on accomplice liability; (2) failing to object to the

trial court’s refusal and/or denial to instruct the jury on self-

defense and voluntary manslaughter; and (3) failing to object to

the trial court’s instruction on flight as consciousness of guilt.

PCRA Court Opinion, 12/13/22, at 31. Therefore, the PCRA court

recommended that this Court grant Appellant a new trial. Id.

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The following legal tenets guide our review of the PCRA court’s findings

and conclusions. The standard of review of a PCRA order is whether the PCRA

court’s determination is supported by the evidence and is free from legal error.

Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019). “We grant

great deference to the PCRA court’s findings that are supported in the record

and will not disturb them unless they have no support in the certified record.”

Commonwealth v. Mojica, 242 A.3d 949, 953 (Pa.Super. 2020) (cleaned

up). Likewise, “a PCRA court’s credibility determinations are binding upon an

appellate court so long as they are supported by the record.”

Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013).

This Court summarized the law pertinent to the Pierce test governing

claims of ineffective assistance of counsel thusly:

[T]o establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the evidence,

ineffective 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. The burden is on the defendant to prove all three of the

following prongs: (1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.

We have explained that a claim has arguable merit where the

factual averments, if accurate, could establish cause for relief.

Whether the facts rise to the level of arguable merit is a legal

determination.

The test for deciding whether counsel had a reasonable basis for

his action or inaction is whether no competent counsel would have

chosen that action or inaction, or, the alternative, not chosen,

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offered a significantly greater potential chance of success.

Counsel’s decisions will be considered reasonable if they

effectuated his client’s interests. We do not employ a hindsight

analysis in comparing trial counsel’s actions with other efforts he

may have taken.

Prejudice is established if there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa.Super. 2019)

(cleaned up).

Here, Appellant presents layered claims of ineffectiveness, asserting

that Attorney Crisp was ineffective in failing to pursue claims in these PCRA

proceedings that Attorney Muller had been ineffective in representing

Appellant at trial and on direct appeal. Therefore, to prevail, Appellant had

the burden of establishing each prong of the Pierce test as to both attorneys’

omissions. See, e.g., Commonwealth v. McGill, 832 A.2d 1014, 1022-23

(Pa. 2003) (explaining that in a layered claim a court cannot conclude that

there is arguable merit to a challenge to subsequent counsel’s performance

was deficient unless all three prongs of the Pierce test are proven as to prior

counsel).

With these principles in mind, we turn to the particulars of Appellant’s

underlying claims. As we find it dispositive, we begin with his contention that

Attorneys Muller and Crisp were ineffective in failing to pursue relief based

upon the trial court’s refusal to instruct the jury as to self-defense and

voluntary manslaughter. Pursuant to 18 Pa.C.S. § 505:

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Self-defense is a complete defense to a homicide charge if 1) the

defendant reasonably believed that he was in imminent danger of

death or serious bodily injury and that it was necessary to use

deadly force to prevent such harm; 2) the defendant did not

provoke the threat that resulted in the slaying; and 3) the

defendant did not violate a duty to retreat. Where the defendant

has introduced evidence of self-defense, the burden is on the

Commonwealth to disprove the self-defense claim beyond a

reasonable doubt by proving that at least one of those three

elements is absent.

Commonwealth v. Green, 273 A.3d 1080, 1084–85 (Pa.Super. 2022)

(cleaned up).

While self-defense is a complete justification for a homicide, an actor

who held an unreasonable belief as to the danger or need for deadly force is

guilty of voluntary manslaughter rather than murder. See 18 Pa.C.S.

§ 2503(b) (“A person who intentionally or knowingly kills an individual

commits voluntary manslaughter if at the time of the killing he believes the

circumstances to be such that, if they existed, would justify the killing under

Chapter 5 of this title (relating to general principles of justification), but his

belief is unreasonable.”). However, the other elements of self-defense,

namely a lack of fault in provoking or continuing the threat and absence of a

violation of a duty to retreat, must be present.

Along these lines, we observe that the law dictates that a duty to retreat

exists only if “the retreat was possible with complete safety.”

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.Super. 2009)

(emphasis added). Similarly, the actor’s continuation of a conflict does not

defeat justification where he was still responding to the ongoing violence

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posed by the aggressor. See, e.g., Commonwealth v. Serge, 837 A.2d

1255, 1266 (Pa.Super. 2003), aff’d on other grounds, 896 A.2d 1170 (Pa.

2006).

It is well-settled that, “where a defendant requests a jury instruction on

a defense, the trial court may not refuse to instruct the jury regarding the

defense if it is supported by evidence in the record[.]” Commonwealth v.

Markman, 916 A.2d 586, 607 (Pa. 2007) (cleaned up). Instead, “it is for the

trier of fact to pass upon that evidence and improper for the trial judge to

exclude such consideration by refusing the charge.” Id. (cleaned up). Stated

differently: “If there is any evidence from whatever source that will support

[the elements of self-defense] then the decision as to whether the claim is a

valid one is left to the jury and the jury must be charged properly thereon by

the trial court.” Commonwealth v. Mayfield, 585 A.2d 1069, 1071

(Pa.Super. 1991) (en banc) (emphasis added).

The PCRA court, in its thorough opinion, detailed the trial testimony

indicating that, on the night in question, Brown overheard Gutierrez call his

brother and tell him to bring a gun to the Jazzland Bar, where Brown had

become engaged in an altercation with Gutierrez. This prompted Brown to

direct Appellant to retrieve an AK-47 from Brown’s vehicle to protect them.

Outside the bar, while Appellant stood near Brown’s car with the AK-47,

Gutierrez’s brother arrived and handed Gutierrez a gun. Gutierrez cocked the

firearm while beginning to walk towards Brown. Young, one of Appellant’s

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cohorts, fired a shot upon Gutierrez’s approach, after which Appellant and

Gutierrez or one of his companions fired their weapons. Discharged cartridge

casings from three weapons were recovered from the scene. See PCRA Court

Opinion, 12/13/23, at 13, 20-21.

Attorney Muller requested that the court instruct the jury on justification

and voluntary manslaughter. Not only did the court decline to include that in

its charge, but it specifically instructed the jury that, while a killing lacks

malice and is thus not murder if the perpetrator acted with legal justification,

that scenario was “not involved in this case.” Id. at 19 (cleaned up).

The PCRA court applied these facts to the Pierce test as follows:

The underlying claim has arguable merit. It is clear from

the record that [Appellant] requested the self-defense and

voluntary manslaughter jury instructions, and that the trial court

refused and/or denied that request. There was sufficient evidence

presented through the testimony of Brown, [another witness], and

Gutierrez that a jury could find that [Appellant] believed that the

shooting was justified. . . . [T]he charge conference was not on

the record, and trial counsel did not place any objections on the

record following the conference.

There was no rational or strategic reason for counsel’s

inaction. Attorney Muller candidly admitted that he had no

strategic reason to not preserve the issue by placing an objection

on the record at the conclusion of the trial court’s jury charge. He

further stated that he did not raise it on direct appeal because the

issue had not been preserved. Attorney Crisp testified that he did

not have a strategic reason to not raise the issue in [Appellant]’s

initial PCRA petition.[2]

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2 As the PCRA court observed elsewhere in its opinion: “Attorney Crisp

elaborated that he generally did not view jury instructions as a source of PCRA

relief and did not review them as thoroughly as he could have in this case.”

PCRA Court Opinion, 12/13/23, at 15.

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[Appellant] suffered prejudice as a result. If the jury was

instructed on self-defense as a justification, as well as voluntary

manslaughter, it could have found [Appellant] guilty of a lesser

offense than first-degree murder. Additionally, the trial court

directed the jury that justification was not involved in this case.

Therefore, we find initial PCRA counsel was ineffective, and

[Appellant] is entitled to relief on this claim [that PCRA counsel

was ineffective in failing to pursue the ineffectiveness of trial and

direct appeal counsel].

Id. at 21-22.

The Commonwealth contests the PCRA court’s conclusions. It argues

that the instruction was not warranted because Appellant, by virtue of his

association with Brown and/or his menacing appearance, was guilty of

provoking the threat. See Commonwealth’s brief at 20-21. Further, the

Commonwealth maintains that Appellant and his group could have retreated

by leaving the Jazzland Bar completely after Gutierrez called for a weapon.

Id. at 21.

Appellant counters that other evidence suggested that he had been

playing the role of peacemaker, telling Brown and Gutierrez to calm down,

before Gutierrez cocked his gun while approaching and seven shots were

discharged before Appellant fired the AK-47. See Appellant’s brief at 18;

Appellant’s reply brief at 10. Further, he observes that his decision to arm

himself suggested an intent to be prepared to defend an attack from Gutierrez,

not necessarily to act as an aggressor. See Appellant’s brief at 22. Moreover,

with Gutierrez calling for a firearm to be brought to him at the bar, and his

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brother’s prompt delivery of it, calls into question whether a retreat with

complete safety was possible at that point.

Accordingly, we agree with the PCRA court that the claim that Attorney

Muller was ineffective in failing to preserve the trial court’s denial of self-

defense and involuntary manslaughter instructions had arguable merit.

Additionally, Attorney Muller had no strategic basis for not preserving the issue

at trial and pursuing it on direct appeal. Likewise, Attorney Crisp had no

reasonable basis for not raising a PCRA claim challenging Attorney Muller’s

omission.

Finally, the plausibility of the jury concluding that imperfect self-defense

negated Appellant’s mens rea of malice, and instead convicting him of

voluntary manslaughter, undermines confidence in the outcome of his trial.

See, e.g., Green, 273 A.3d at 1089) (awarding new trial based upon a refusal

to give an imperfect self-defense voluntary manslaughter instruction where,

at a party, the appellant brandished his firearm in a dispute with the victim

while the victim’s cousin approached with his hand near his waistband, the

appellant fired a shot in reaction to the victim appearing to commence taking

a swing at him, and then turned to fire shots at the cousin as well). Thus, the

PCRA court properly ruled that both counsels’ omissions prejudiced Appellant.

See Sandusky, 203 A.3d at 1044.

Therefore, we agree with the PCRA court that he is entitled to PCRA

relief in the form of a new trial based upon this claim. As a consequence,

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there is no need for us to delve into the merits of the other Bradley claims.

Moreover, this disposition moots the Brady claims that Appellant litigated

prior to the appeal, because he now has the information that he claims the

Commonwealth failed to produce prior to the first trial, and he may utilize it

in the new proceedings.

For the above reasons, we reverse the PCRA court’s August 12, 2021

order dismissing Appellant’s PCRA petition rather than awarding relief, and

remand this case for a new trial.

Order reversed. Case remanded for a new trial. Jurisdiction

relinquished.

Judge Stabile joins this Memorandum.

Judge Sullivan files a Dissenting Memorandum.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/07/2024

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