Com. v. Evans, R.

J-A05022-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RODNEY EVANS :

:

Appellant : No. 1743 EDA 2019

Appeal from the PCRA Order Entered May 24, 2019

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

No(s): CP-51-CR-0012651-2009

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED JUNE 09, 2021

Appellant Rodney Evans appeals from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act1 (PCRA). Appellant

contends that the PCRA court erred in dismissing his claims concerning his

trial and direct appeal counsel’s failure to obtain a ballistics expert and seek a

new trial for judicial and prosecutorial misconduct, as well as an improper jury

instruction. For the reasons that follow, we are constrained to vacate the

order dismissing the petition and remand to the PCRA court.

Briefly, a jury convicted Appellant of third-degree murder concerning a

barfight that escalated into a gunfight that caused the death of the victim.

This Court affirmed the judgment of sentence on direct appeal. See

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

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Commonwealth v. Evans, 55 A.3d 131, 354 EDA 2011 (Pa. Super. filed July

11, 2012) (unpublished mem.).

Appellant filed a timely pro se PCRA petition on March 18, 2013. Private

counsel, Jerome Brown, Esq., entered his appearance on Appellant’s behalf on

April 22, 2014, and filed an amended petition, followed by two supplemental

amended petitions. In those counseled petitions, Appellant asserted, in part,

that (1) direct appeal counsel was ineffective for failing to challenge the

sufficiency of the evidence when there was no proof that he fired the shot that

killed the victim, and (2) trial counsel was ineffective for failing to call

witnesses to testify Appellant did not have a firearm on the night of the

shooting, for failing to object to the trial court’s jury instructions, for failing to

object to jury instructions regarding Appellant brandishing a firearm, and for

failing to object to comments by the Commonwealth during opening and

closing statements.

Appellant’s counseled PCRA petitions also asserted that the trial court’s

responses to the jury’s first two questions were not transcribed and, therefore,

there was no evidence that either Appellant or trial counsel were present for

the trial court’s responses and reinstructions. Appellant claimed that trial

counsel and appellate counsel should have challenged this issue.

Lastly, Appellant attached a 2014 ballistics report requested by Attorney

Brown and asserted that trial counsel was ineffective for failing to obtain a

defense expert to demonstrate that Appellant did not fire the shot that killed

the victim.

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On July 8, 2016, Appellant filed a petition to proceed pro se. On January

6, 2017, the PCRA court conducted a Grazier2 hearing and permitted

Appellant to proceed pro se, with Attorney Brown acting as stand by counsel.

On January 16, 2018, Appellant filed a pro se amended PCRA petition

asserting: (1) trial counsel failed to adequately investigate the case and

present a ballistics expert; (2) trial and direct appeal counsel failed to

challenge the trial court’s unrecorded ex parte jury instruction; (3) trial

counsel failed to object to the Commonwealth’s “manipulation an[d]

misstatements[;]” and (4) trial counsel failed to challenge an improper jury

instruction. See Pro Se PCRA Pet, 1/16/18, at 1.

On March 22, 2019, the PCRA court issued notice of its intent to dismiss

Appellant’s petition as untimely. See Rule 907 Notice, 3/22/19. Appellant

filed a response on April 11, 2019, arguing that the petition was timely. On

May 24, 2019, the PCRA court dismissed the petition as untimely,

characterizing it as a second or subsequent petition. See Order, 5/24/19.

Teri B. Himebaugh, Esq., entered her appearance as counsel for

Appellant, and filed a timely notice of appeal on June 17, 2019. Pursuant to

the PCRA court’s order, Appellant filed a timely Pa.R.A.P. 1925(b) statement

claiming that the PCRA court erred in dismissing Appellant’s pro se amended

petition as untimely and that he was entitled to an evidentiary hearing. See

Rule 1925(b) Statement, 7/12/19, at 1-2.

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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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The PCRA court issued its first Rule 1925(a) opinion on November 18,

2019. The PCRA court acknowledged that it “mistakenly noted that

[Appellant’s petition] was untimely instead of noting that [it] was without

merit” and that “Appellant correctly noted that [his petition] was timely filed.”

PCRA Ct. Op., 11/18/19, at 2 n.1.

Nevertheless, the PCRA court asserted that it would address the issues

raised in Appellant’s pro se petitions and state its reasons for declining to hold

an evidentiary hearing on meritless issues. See id. The PCRA court thereafter

found meritless the claims raised in Appellant’s counseled petitions filed by

former counsel, Jerome Brown, namely: (1) direct appeal counsel’s failure to

challenge the sufficiency of the evidence; (2) trial counsel’s failure to call

witnesses; (3) trial counsel’s failed to object to the trial court’s jury instruction

on causation; (4) trial counsel’s failure to obtain a ballistics expert; and (5)

trial counsel’s failure to obtain DNA evidence. The PCRA court further

determined that a claim based on the absence of transcripts concerning two

jury questions during deliberations was waived because it could have been

raised in Appellant’s direct appeal.

On January 29, 2020, Attorney Himebaugh filed Appellant’s brief in this

Court. On February 28, 2020, Appellant filed with this Court a petition to

proceed pro se. Attorney Himebaugh filed an application to withdraw on March

5, 2020. This Court denied the petitions.

On August 1, 2020, Appellant filed a counseled application for remand.

This Court granted the application, remanding to the PCRA court for Appellant

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to file a supplemental Rule 1925(b) statement, and the PCRA court to file a

supplemental Rule 1925(a) opinion.

On August 25, 2020, Appellant filed a pro se3 supplemental Rule

1925(b), a motion to proceed in forma pauperis, and a motion to proceed pro

se. See Docket No. 0012651-2009, at 17. Therein, Appellant focused on

issues that he raised in his amended pro se PCRA petition he filed after

Attorney Brown withdrew. Attorney Himebaugh did not file a counseled

supplemental Rule 1925(b) statement.

On September 28, 2020, the PCRA court filed a supplemental opinion.

The PCRA court reiterated that it “already recognized that Appellant timely

filed his Petition” in its November 18, 2019 opinion. PCRA Ct. Supp. Op.,

9/28/20, at 1 (footnote omitted). The court found that Appellant had waived

the claims in his pro se supplemental Rule 1925(b) statement because he

mailed it to the PCRA court rather than filing the statement with the clerk of

courts. The PCRA court did not consider Appellant’s motions to proceed pro

se, but nevertheless addressed the claims raised in Appellant’s pro se

supplemental Rule 1925(b) statement. Notably, although the PCRA court

previously concluded that Appellant’s claim based on the missing transcripts

of its response to jury questions was waived, see PCRA Ct. Op., 11/18/19, at

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3 In the supplemental Rule 1925(b) statement Appellant states: “Appellant

believes that he is representing himself as previously retained counsel has

constructively abandoned him.” Supplemental Concise Statement, 8/23/20,

at 1.

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9, its supplemental statement asserted that Appellant could not “possibly

establish that the alleged event, an ‘unrecorded ex parte jury instruction[,’]

occurred.” PCRA Ct. Supp. Op., 9/28/20, at 8.

The case was transmitted back to this Court. On December 28, 2020,

Attorney Himebaugh filed an appellate brief for Appellant.

Appellant raises the following issues in his counseled brief:

1. Were Appellant’s constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to retain and present a ballistics expert to a)

establish that the evidence was insufficient as to Third Degree

murder; b) to support the defense theory and c) to present a

factual basis for an Incontrovertible Physical Facts instruction?

2. Were Appellant's constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to object and request a mistrial when the Trial

Court gave the jury an unrecorded ex parte instruction;

Appellate counsel was ineffective for failing to raise and argue

the Trial Court error on direct appeal?

3. Were Appellant’s constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to object and request a mistrial when the

prosecution made multiple misstatements of the evidence; Was

Appellate counsel . . . ineffective for failing to raise and argue

the prosecutorial misconduct on direct appeal?

4. Were Appellant’s constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to object to the Court giving the jury an

improper ‘mandatory presumption’ charge?; Was Appellate

counsel . . . ineffective for failing to raise and argue the claim

of Trial Court error on direct appeal?

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5. Were Appellant’s constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to object and request a mistrial to the court’s

[]unrecorded ex parte jury instruction; was direct appeals

counsel ineffective for failing to raise and argue this claim on

direct appeal?

6. Were Appellant’s constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to object to the prosecutor’s manipulation and

misstatement of crime scene photos; was direct appeals

counsel ineffective for failing to raise and argue this claim on

direct appeal?

7. Were Appellant’s constitutional rights under the Sixth and

Fourteenth Amendments of the U.S. Constitution and Article 1

sec. 9 of the Pennsylvania Constitution violated by trial

counsel’s failure to object and request a mistrial when the

prosecutor manipulated and misstated the testimony of Officer

Trenwith and Officer Welsh; was direct appeals counsel

ineffective for failing to raise and argue this claim on direct

appeal?

Appellant’s Brief, 12/28/20, at 3-4.

In his counseled brief, Appellant asserts that the PCRA court erred in

dismissing the claims raised in the pro se PCRA petition that he filed after

Attorney Brown’s withdrawal. See id. at 6 n.2. Appellant proceeds to advance

substantive claims that each of his pro se claims had merit.

In response, the Commonwealth initially notes that Appellant may be

entitled to a remand for a Grazier hearing to determine whether he wishes to

proceed pro se in this appeal. See Commonwealth’s Brief at 5, 7-8. The

Commonwealth also argues that Appellant failed to properly plead his claims

of ineffectiveness or that his claims were meritless. See id. at 15 (noting

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Appellant failed to provide an affidavit to raise a genuine issue of fact that the

trial court issued ex parte jury instructions), 16-24.

“Our standard of review for issues arising from the denial of PCRA relief

is well settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted and formatting

altered).

Initially, we agree with the Commonwealth that the tortured procedural

history of this appeal suggests that a remand is necessary to address the

status of Appellant’s representation in this appeal and the unresolved motion

to proceed pro se that Appellant filed in conjunction with his pro se

supplemental Rule 1925(b) statement on August 25, 2020. See

Commonwealth’s Brief at 7-8; see also Commonwealth v. Jette, 23 A.3d

1032, 1044 (Pa. 2011) (disapproving of hybrid representation in a PCRA

appeal). However, this panel’s review of the PCRA court’s opinions, with the

benefit of the parties’ arguments and a complete record, constrain us to

conclude that Appellant is entitled to relief beyond a determination of Attorney

Himebaugh’s status as counsel in this appeal.

As noted above, the PCRA court here issued a Rule 907 notice of its

intent to dismiss Appellant’s petition as untimely, and the PCRA court in fact

entered the May 24, 2019 order dismissing Appellant’s petition as untimely

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filed. This was error, as the PCRA court now concedes.4 Although we

acknowledge that this Court may affirm the dismissal of PCRA petition on any

grounds, we conclude that the circumstances of this appeal compel the

conclusion that doing so could impair Appellant’s right to a first PCRA petition

and the opportunity to preserve arguments and responses in the PCRA court.

See Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012)

(noting that “[t]he purpose behind a Rule 907 pre-dismissal notice is to allow

a petitioner an opportunity to seek leave to amend his petition and correct

any material defects” (citation omitted)); accord PCRA Ct. Op, 11/18/19, at

9, PCRA Ct. Supp. Op., 9/28/20, at 8; Commonwealth’s Brief at 15 (offering

three different reasons for dismissing one of Appellant’s claims for failing to

raise a genuine issue of material fact).

For these reasons, we vacate the PCRA court’s May 24, 2019 order

dismissing Appellant’s petition as untimely filed and remand to the PCRA court

for an appropriate consideration of Appellant’s petitions on the merits and for

compliance with the rules of criminal procedure. On remand, the PCRA court

shall resolve the issue of Appellant’s intention to proceed pro se or with

Attorney Himebaugh, his second privately retained PCRA counsel, before

proceeding further in this matter.

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4 Specifically, the PCRA provides that a petition shall be filed within one year

of the date the judgment of sentence becomes final. See 42 Pa.C.S. §

9545(b)(1). Here, Appellant’s judgment of sentence became final on July 11,

2012, thus his petition, filed on March 18, 2013, was timely filed. Therefore,

we agree that the PCRA court erred when it dismissed Appellant’s petition as

untimely.

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Order vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2021

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