Com. v. Brown, L.

J-S09024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LEKIRR BROWN :

:

Appellant : No. 1261 EDA 2020

Appeal from the PCRA Order Entered March 2, 2018

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

No(s): CP-51-CR-0002118-2012

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.: FILED JUNE 21, 2021

Lekirr Brown (Appellant) appeals nunc pro tunc from the order entered

on March 2, 2018, in the Philadelphia County Court of Common Pleas, denying

his first petition filed pursuant to the Post Conviction Relief Act (PCRA).1 He

argues the PCRA court erred in denying relief on his claims of trial counsel’s

ineffectiveness for failing to: object to certain hearsay evidence, file a motion

for mistrial, and communicate a plea deal offered by the Commonwealth. For

the following reasons, we vacate the order in part, and remand for an

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1 42 Pa.C.S. §§ 9541-9546. As we discuss infra, Appellant has filed three

PCRA petitions in this case. The first resulted in the reinstatement of his direct

appeal rights, which we do not consider for PCRA timeliness purposes. See

Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013). The

second PCRA petition, filed February 20, 2015, and alleging trial counsel’s

ineffectiveness, resulted in the March 2, 2018, denial order currently appealed

from. The third PCRA petition successfully sought the instant nunc pro tunc

reinstatement of Appellant’s right to appeal from the March 2, 2018, order.

J-S09024-21

evidentiary hearing on whether trial counsel communicated the

Commonwealth’s plea offer to Appellant. We affirm in part on Appellant’s

remaining claims.

The facts of the underlying case are as follows. On November 12, 2011,

at approximately 2:00 a.m., Zandar Cotton (Victim) and his girlfriend Erica

White (Witness) were leaving the S&K bar on the corner of 24th and Wolf

Streets in Philadelphia. N.T. Trial (Waiver) Vol. I, 7/30/12, at 16-18, 67. The

Victim was shot in the stomach once. Id. at 22.

That same night, the Witness told police she “heard [two] gunshots and

[saw the Victim2] lying on the ground. [The Victim told the Witness] he was

shot.” N.T. 7/30/12, at 75, 77-78. The Witness also told police that she and

the Victim were not involved in any arguments that night. Id. at 78.

The Victim was transported to the hospital where he was treated for the

gunshot wound. N.T. 7/30/12, at 23-24. On November 13, 2011,

approximately 24 hours after being shot, the Victim gave a statement to police

that he “heard a gunshot. [He] jumped in front of [the Witness] and [he] was

shot.” Id. at 38-39. The Victim heard “[a]t least one” gunshot. Id. at 47.

The Victim did not see who shot him and was not in any arguments the night

of the incident. Id. at 44-45. On November 14th, police reinterviewed the

Victim and he stated when he walked outside of the bar, “there was an

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2 The Witness referred to the Victim as her boyfriend, fiancé, and husband

throughout her testimony.

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argument. A guy shot me one time in the stomach.” Id. at 54. The Victim

identified Appellant in a photograph as the man who shot him. Id. at 59-60.

On November 15, 2011, the Witness gave a second statement to police.

N.T. 7/30/12, at 83-84. She stated she has known Appellant “since he was

little.” Id. at 85. When asked whether she or the Victim had “any arguments

or disagreements with anyone at the party,” the Witness replied, “Not really,”

but stated that while outside the bar, she was talking to a woman named

“Eisha”3 and “a bunch of young girls from Wilson Park.” Id. at 84, 88.

Appellant was “getting into [her] conversation” and she told Appellant, “[G]et

out of my face. No one is talking to you. You got my daughter’s baby daddy

sitting in jail almost doing life.” Id. at 84-85. The Victim told the Witness to

“come on” to leave, and as the Witness started walking, she saw the Victim

fall. Id. at 85. The Victim told the Witness he had been shot. Id. The

Witness stated she “didn’t even hear a shot[,]” then “turned around and saw

[Appellant] running away down Ritner Street towards the projects, Wilson

Park.” Id. The Witness identified Appellant in a photo array. Id. at 87. The

Witness also told police “a bunch of young girls,” whom the Witness did not

know, “told [her] who shot [the Victim.]” Id. at 104, 108. However, when

asked if she knew anyone who could identify the shooter or “tell [the police]

about what happened that night,” the Witness responded she did not, and she

did not have any further information. Id. at 111. Furthermore, we note that

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3 This person is referred to as both “Eisha” and “Myesha” in the trial transcript.

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at trial, the Commonwealth did not present evidence as to whether the group

of girls actually identified the shooter to the Witness.

The trial docket includes an April 2, 2012, entry for an order granting a

continuance, with the comment “Commonwealth’s Offer Rejected[.]” 4 See

Criminal Docket at 3. This appears to be a notation that Appellant rejected a

plea offer. This case proceeded to a non-jury trial on July 30, 2012, where

the Commonwealth called the Victim, the Witness, and Philadelphia Police

Detective John Frei to testify.

The Victim testified to the following. He was leaving the S&K bar on

November 12, 2011, when he saw the Witness “talking to [ ] some friends or

something[,]” “saying her goodbyes[.]” N.T. 7/30/12, at 25-26. While

leaving the S&K bar with the Witness, he was shot in the stomach. Id. at 21-

22. The Victim denied Appellant was the shooter and stated he had never

seen Appellant before the preliminary hearing in February. Id. at 27, 29. The

Victim claimed that in his November 14, 2011, interview with police he was in

the hospital and “[m]orphined [ ] up” and the detectives “filled in everything”

and “gave [him] all the answers[.]” Id. at 51, 54, 57-58. The Commonwealth

confronted the Victim with his prior statements to police, which the Victim

continued to disclaim. Id. at 38-61.

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4 “The PCRA Court attempted to locate the hearing transcript for April 2,

2012,” but none existed. PCRA Ct. Op., 8/26/20, at 11.

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The Witness testified at trial to the following. She was saying goodbye

to her friends at the S&K bar in the early morning hours when the Victim was

shot. N.T. 7/30/12, at 67-68, 71. Appellant, whom she had known “since he

was a little baby,” was in the bar that night. Id. at 73. She did not hear any

gunshots or see who shot the Victim. Id. at 71. The Witness denied having

any argument with Appellant, but acknowledged they “had a little

misunderstanding.” Id. at 86-87. The Witness also denied knowing anyone

named “Eisha” or “Myesha,” and stated she did not “recall . . . anybody telling

[her] who shot” the Victim that night. Id. at 88, 104. The Commonwealth

confronted the Witness with her prior statements to police. Id. at 75-88, 101-

11. The Witness likewise disclaimed her prior statements, testifying at trial

that she was intoxicated and she did not know or did not recall what happened.

See id. at 97, 100.

Detective Frei testified to the following. On November 12, 2011, he

responded to the shooting in this matter. N.T. Trial (Waiver) Vol. II, 7/31/12,

at 5-7. He interviewed the Witness that same night and interviewed the Victim

in the hospital on November 13 and 14, 2011. Id. at 8, 11-12. During these

interviews, the Victim was “conscious,” “alert,” and “coherent[,]” and did not

have any trouble understanding the questions. Id. at 10, 14. The Victim

identified Appellant as the shooter during the November 14th interview

through a photo array. Id. at 15, 22-23. Detective Frei stated that during

both interviews he “wrote [the answers] down as [the Victim] was responding”

“word for word” to make sure they were “correct.” Id. at 21-22. Both the

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Victim and the Witness reviewed their statements and signed them. Id. at

16, 21.

Appellant did not testify or present any evidence. The trial court found

Appellant guilty of attempted murder, aggravated assault, simple assault,

possession of an instrument of crime, reckless endangerment of another

person, possession of a firearm prohibited, and carrying firearms in public.5

On December 10, 2012, the trial court sentenced Appellant to an aggregate

term of 10 to 20 years’ incarceration.

Appellant filed a timely counseled PCRA petition on February 26, 2013,

which resulted in the reinstatement of his direct appeal rights nunc pro tunc.

Appellant then appealed to this Court, which affirmed his judgment of

sentence on June 16, 2014. Commonwealth v. Brown, 939 EDA 2013

(unpub. memo.) (Pa. Super. June 16, 2014), appeal denied, 315 EAL 2014

(Pa. Oct. 7, 2014). The Pennsylvania Supreme Court denied his petition for

allowance of appeal on October 7, 2014.

On February 20, 2015, Appellant timely filed a pro se PCRA petition,6

and an additional pro se petition on March 1, 2016, where he claimed his trial

counsel, Joseph Santaguida, Esquire (Trial Counsel), was ineffective for, inter

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5 18 Pa.C.S. §§ 901(a), 2702(a), 2701(a), 907(a), 2705, 6105(a)(1), 6108,

respectively.

6 Although the PCRA court referred to Appellant’s February 20, 2015, petition

as his “second PCRA petition,” we treat it as his first for PCRA timeliness

purposes. See Turner, 73 A.3d at 1286.

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alia, failing to litigate issues relating to suppression and identification, and

failing to prepare for trial. The record indicates that on October 3, 2015, the

PCRA court appointed David Rudenstein, Esquire (PCRA Counsel), to represent

Appellant. Appellant’s Amended Petition Under Post-Conviction Relief Act,

3/20/20, at 4.

The trial court summarized the ensuing procedural history as follows:

PCRA [C]ounsel filed an amended PCRA petition on May 9,

2017. On October 26, 2017, the Commonwealth filed a motion to

dismiss the amended PCRA petition. [The] PCRA Court, after

carefully reviewing the record, [Appellant’s] filings, PCRA

counsel’s amended petition, and the Commonwealth’s motion to

dismiss, determined the issues raised by PCRA counsel lacked

merit . . . . The PCRA Court sent [Appellant] a Pa.R.Crim.P. 907

notice of dismissal on January 22, 2018. [Appellant] filed a [pro

se] Response in Opposition to [the PCRA] Court’s Notice of Intent

to Dismiss on February 2, 2018. . . . [O]n March 2, 2018, [the

PCRA] Court issued an order denying [Appellant] post-conviction

relief.

On April 1, 2018, [Appellant] filed a Notice of Appeal of the

dismissal of his PCRA petition. . . .

[PCRA Counsel, however, did not file any appellate brief.7]

The Superior Court remanded the case to the PCRA Court on

August 23, 2018 for status of counsel and preservation of

[Appellant’s] appellate rights. On September 17, 2018 the PCRA

Court [ ] found that [PCRA C]ounsel did not abandon [Appellant]

and continued to be counsel of record. The PCRA Court ordered

defense counsel to file a brief with the Superior Court within 3

days. [On April 26, 2019, the Superior Court dismissed

Appellant’s appeal on the ground his “submissions to [the] Court

do not cite relevant case or statutory authority,” and instead

merely provide “two bald citations in support of three appellate

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7 PCRA Counsel later filed a letter in the Superior Court, stating he did not

abandon Appellant, and his failure to file a brief was due to a death in his

family. Letter from Attorney Rudenstein, 9/12/18.

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issues.” Commonwealth v. Brown, 959 EDA 2018 (unpub.

memo. at 3-4) (Pa. Super. April 26, 2019). This Court thus

concluded Appellant’s issues were waived for failure to file a

proper brief and dismissed the appeal.]

[Appellant] filed his third PCRA petition [pro se] on August

8, 2019. [New PCRA counsel, Peter Levin, Esquire,] filed an

amended PCRA petition on March 20, 2020[, requesting

reinstatement of Appellant’s right to appeal nunc pro tunc from

the March 2, 2018, PCRA dismissal order. T]he Commonwealth

filed its response on May 29, 2020 in which it stated it did not

have any objection to [Appellant’s] rights being reinstated under

the new fact exception to the time requirements of the PCRA under

Commonwealth v. Bennett, 930 A.2d 1264 [(Pa. 2007), due to

counsel’s failure to file a brief]. The PCRA [c]ourt subsequently

reinstated [Appellant’s] right to file an appeal of the dismissal of

his . . . PCRA petition, nunc pro tunc.

PCRA Ct. Op. at 3-4.

On June 23, 2020, Appellant filed a notice of appeal from the March 2,

2018, dismissal of his February 20, 2015, PCRA petition. Appellant timely

complied with the PCRA court’s order to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues on appeal:

[1.] Whether the PCRA Court erred in not granting relief as trial

counsel was ineffective for failing to object to the prosecutor

introducing the witness’[ ] own statements for rehabilitation

purposes?

[2.] Whether the PCRA Court erred in not granting relief as trial

counsel was ineffective for failing to file a motion for a mistrial as

the prosecutor used excited utterance to substantiate prejudicial

hearsay evidence?

[3.] Whether the [c]ourt erred in not granting relief as trial counsel

was ineffective a[t] trial for failing to notify [ ] Appellant of a plea

deal offered by prosecution?

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[4.] Whether the PCRA Court erred in dismissing [ ] Appellant’s

PCRA petition without an evidentiary hearing on the issues raised

in the amended PCRA petition regarding counsels’ ineffectiveness?

Appellant’s Brief at 9.8

In his first issue, Appellant argues Trial Counsel was ineffective “for

failing to object to the prosecutor introducing the Witness’ [prior] statements

[to police] for rehabilitation purposes.” Appellant’s Brief at 19. Appellant

insists the Witness was not being impeached when the Commonwealth

introduced the statements. Id. Instead, Appellant states, the Witness “stated

she did not recall what happened the night of the incident[,]” and the

Commonwealth “attempted to use these statements to rehabilitate [the

Witness] despite there not being any express or implied charge of faulty

memory.” Id. at 19-20. Appellant contends these statements “were being

offered as substantive [and] identification evidence to link [ ] Appellant as the

perpetrator.” Id. at 20. Appellant states his “case likely would have had a

different outcome if the introduction of these statements was objected to

[because] there would be minimal evidence linking [ ] Appellant to the scene.”

Id.

Appellant’s argument does not specify any particular statements, either

in the Witness’ trial testimony or her prior statements to police. Nevertheless,

we note he cites pages 75 through 85 of the July 30, 2012, trial notes of

testimony. Appellant’s Brief at 20; PCRA Ct. Op. at 6 n.3. We note that at

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8 Appellant’s claims have been reordered for ease of review.

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these pages of the Witness’ direct examination, the Commonwealth asked her

if she “called the South Detectives the next day [after the shooting]

anonymously and say that Lee-Lee from the projects shot [the Victim]?,” and

the Witness responded “No, I did not.”9 N.T. 7/30/12, at 80. The

Commonwealth then asked the Witness if she knew “anybody who would have

made that phone call[,]” to which she likewise responded, “No, I do not.” Id.

Trial Counsel objected, asking “the question and answer be stricken[ ]”

because it was “improper” to “assume[ ] that somebody did that.” Id. at 80-

81. The Commonwealth responded the question was “a fair impeachment

question.” Id. at 81. The trial court struck the portion of the Witness’ “answer

that went beyond that she does not know who made that call[,]” but overruled

the objection to the question and the Witness’ remaining answer. Id. at 80-

81. We conclude no relief is due.

The standard of review for an appeal from the denial of PCRA relief is

well settled:

Our standard of review in PCRA appeals is limited to

determining whether the findings of the PCRA court are supported

by the record and free from legal error. “The PCRA court’s factual

determinations are entitled to deference, but its legal

determinations are subject to our plenary review.”

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citations

omitted).

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9 At trial, the Witness identified Appellant as “Lee-Lee, Lekirr.” N.T. 7/30/12,

at 72-73.

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[W]e also note that appellant is required to make the following

showing in order to succeed with [an ineffectiveness of counsel]

claim: (1) that the underlying claim is of arguable merit; (2) that

counsel had no reasonable strategic basis for his or her action or

inaction; and (3) that, but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the

proceedings would have been different. The failure to satisfy any

prong of this test will cause the entire claim to fail. Finally, counsel

is presumed to be effective, and appellant has the burden of

proving otherwise.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citations

omitted).

The standard of review for the admission of evidence is as follows:

The admission or exclusion of evidence is within the sound

discretion of the trial court, and . . . we will only reverse a ruling

by the trial court upon a showing that it abused its discretion or

committed an error of law.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012).

Impeachment evidence may be used “[f]or the purpose of attacking the

credibility of any witness[.]” Pa.R.E. 609(a) (emphasis added). Pennsylvania

Rule of Evidence 613(a) defines the accepted use of a prior inconsistent

statement:

A witness may be examined concerning a prior inconsistent

statement made by the witness to impeach the witness’[ ]

credibility. The statement need not be shown or its contents

disclosed to the witness at that time, but on request, the

statement or contents must be shown or disclosed to an adverse

party’s attorney.

Pa.R.E. 613(a).

Further, this Court has stated:

Our courts long have permitted non-party witnesses to be cross-

examined on prior statements they have made when those

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statements contradict their in-court testimony. Such statements,

known as prior inconsistent statements, are admissible for

impeachment purposes. . . . P.R.E. 613(a). Further, a prior

inconsistent statement may be offered not only to impeach a

witness, but also as substantive evidence if it meets additional

requirements of reliability. . . . P.R.E. 803.1. The test is a two-

part inquiry: 1) whether the statement is given under reliable

circumstances; and 2) whether the declarant is available for cross-

examination.

Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002) (some

citations omitted).

The PCRA court found the statements to which Appellant refers were

used not as rehabilitation evidence, but instead for the purposes of

impeachment. See PCRA Ct. Op. at 8. The PCRA court stated:

[At trial, the Witness] disavowed the contents of her statement to

police on November 15, 2011 and offered contradictory testimony

that she did not have an argument with anyone prior to the

shooting and she did not see the shooter. [N.T. 7/30/12, at 78-

79.] The prosecutor then attempted to impeach by asking [the

Witness], “Did you call the South Detectives the next day

anonymously and say that [Appellant] shot [the Victim]?” [The

Witness] replied that she had not made the phone call and

asserted she did not know anyone who would have placed the call.

Id. at 80. The prosecutor asked this question only for

impeachment purposes rather than just as an attempt to

introduce hearsay testimony, as [Appellant] claims. . . .

PCRA Ct. Op. at 7-8.

We agree with the PCRA court. The trial court did not abuse its

discretion or commit an error of law when it allowed the Commonwealth to

impeach its own witness. See Pa.R.E. 609(a); Lopez, 57 A.3d at 81.

Additionally, Appellant’s claim that Trial Counsel was ineffective for not

objecting to the introduction of this evidence is without merit because Trial

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Counsel did, in fact, object. See N.T. 7/30/12, at 80-81. For these reasons,

this claim does not have arguable merit, and no relief is due. See Jones, 942

A.2d at 906.

In his second claim, Appellant argues “[T]rial [C]ounsel was ineffective

for failing to move for a mistrial when the prosecutor used excited utterance

to substantiate prejudicial hearsay evidence[.]” Appellant’s Brief at 21. Here,

Appellant first reiterates that at trial, the Witness testified “she did not recall

anyone being at the scene nor anyone telling her who shot” the Victim. Id.

at 22. The Commonwealth then introduced the Witness’ prior statement to

police, that she heard “‘a bunch of young girls’ saying they saw who shot” the

Victim. Id. at 22, citing N.T. at 108-10. Appellant avers the trial court

improperly admitted this statement under the excited utterance exception to

the general rule against hearsay. In support, he contends that “[a]t no point

. . . was there any indication of who the girls were, or was a time frame given

to show the spontaneity of their statements regarding ‘who shot[’] the Victim”

Id. at 22.

Appellant further states that when the Commonwealth confronted the

Witness with her prior statement, Trial Counsel should have moved for a

mistrial on the basis of inadmissible hearsay. Appellant’s Brief at 22.

Appellant contends he was prejudiced by this evidence because “it stated that

there were unnamed individuals who witnessed [ ] Appellant commit the

shooting [and] was used to identify [ ] Appellant as the shooter.” Id.

Appellant maintains “there would have been substantially less evidence

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against” him if the trial court did not admit this evidence and “the

Commonwealth likely would not have been able to prove [he] was guilty.” Id.

Appellant insists that “[a]lthough [T]rial [C]ounsel did object to the hearsay

evidence, [he] should have moved for a mistrial [because t]he prejudicial

hearsay evidence was used to identify [ ] Appellant as the shooter.” Id. at

23. We conclude no relief is due.

Our Supreme Court has stated:

A motion for mistrial is a matter addressed to the discretion of the

court. A trial court need only grant a mistrial where the alleged

prejudicial event may reasonably be said to deprive the defendant

of a fair and impartial trial.

Commonwealth v. Fletcher, 750 A.2d 261, 269 (Pa. 2000) (citations

omitted).

Pennsylvania Rule of Evidence 803(2) defines the excited utterance

exception to hearsay as:

A statement relating to a startling event or condition, made while

the declarant was under the stress of excitement that it caused.

When the declarant is unidentified, the proponent shall show by

independent corroborating evidence that the declarant actually

perceived the startling event or condition.

Pa.R.E. 803(2).

Here, Trial Counsel did object, repeatedly, to the Witness’ prior

statement to police regarding the “young girls” outside the bar, on the grounds

the line of questioning would lead to hearsay. N.T. 7/30/12, at 101-02. The

Commonwealth argued the testimony would fall under the excited utterance

exception, as “a shooting ha[d] just occurred[ and] anyone . . . in the area is

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going to be under the influence of that exciting event.” Id. at 102. Trial

Counsel responded, “[T]here’s no testimony as to when that statement was

given. Was it the next day, two days later, or a week later? [ ] And we don’t

even know who said it.” Id. He continued to argue against the admission of

this evidence over seventeen pages of testimony. Id. at 93-109. The trial

court ruled the testimony would be admissible under the excited utterance

exception if the Commonwealth could “establish who said it.” Id. at 102. The

court then sustained Trial Counsel’s objection. Id. at 103.

Appellant’s argument that Trial Counsel was ineffective for not

motioning for mistrial is without merit. After objecting time and time again to

the admission of this hearsay evidence only for the trial court to overrule

almost all his arguments, there was no reasonable basis for Trial Counsel to

believe the trial court would grant a mistrial based on the same issue.

Moreover, we disagree with Appellant’s contention that the Witness’ prior

statement to police identified Appellant as the shooter. The Witness simply

told police that “a bunch of young girls” told her who the shooter was, but did

not state who the shooter was. N.T. 7/30/12, at 104, 108. Additionally, the

Witness merely stated in her November 15, 2011, police interview that she

saw Appellant running from the scene after the Victim was shot. Id. at 85.

While the Victim did identify Appellant as the shooter during his November

14, 2011, police interview, Appellant raised no challenge to this statement in

his PCRA petition. Id. at 15, 59-60. For the foregoing reasons, no relief is

due.

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In his third claim, Appellant argues Trial Counsel was ineffective for

failing to notify him of the April 2, 2012, plea deal offered by the

Commonwealth, which is listed as “rejected” on the trial court docket.

Appellant’s Brief at 23. Appellant avers his “case likely would have had a

different outcome as he would have been able to consider taking the [plea]

offer and potentially taken a lesser sentence than what he” received. Id. at

23-24.

The Supreme Court of the United States has held:

[A]s a general rule, defense counsel has the duty to communicate

formal offers from the prosecution to accept a plea on terms and

conditions that may be favorable to the accused. . . . When

defense counsel allowed the offer to expire without advising the

defendant or allowing him to consider it, defense counsel did not

render the effective assistance the Constitution requires.

Missouri v. Frye, 566 U.S. 134, 145 (2012).

The PCRA court states that prior to Appellant’s July 17, 2020, Rule

1925(b) statement, he “did not previously raise [ ] whether he had been

informed of a plea deal.” PCRA Ct. Op. at 11. Nevertheless, the court

attempted to obtain a transcript of the April 2, 2012, proceeding, but none

exists, and therefore it could not ascertain whether Appellant “was conveyed

the guilty plea offer or if he was colloquied.” Id. The PCRA court “requests

that this issue be remanded for an evidentiary hearing.” Id.

The Commonwealth does not object to a hearing on this issue, but notes

both Trial Counsel and prior PCRA Counsel, Attorney Rudenstein, are now

deceased. Commonwealth Brief at 19-20. The Commonwealth asserts that if

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the PCRA court were to conduct a hearing, “it would proffer that the markings

on its trial file indicate[ ] that [Appellant] was, in fact, present in court” on the

day the offer was relayed to defense counsel. Id. at 20.

Upon review of the record, we note that on August 4, 2017, Appellant

sent pro se correspondence to the PCRA court, asking if he was “offer[ed] a

deal[.]” Appellant’s Pro Se Correspondence, 8/4/17. Appellant claimed he

“wrote both [his T]rial [Counsel] and the [Commonwealth] and got nothing in

[r]eturn[.]” Id. Furthermore, this issue was raised in Appellant’s February 2,

2018, pro se response to the PCRA court’s Rule 907 dismissal notice.

Appellant’s Response in Opposition to this Court’s Notice of Intent to Dismiss,

2/2/18. Appellant attached a letter to former PCRA Counsel, Attorney

Rudenstein, dated April 5, 2017, stating he just learned from a relative that

the Commonwealth proposed a plea offer and requesting this issue be raised.

Id. at Exh. A. Appellant averred he had not “received any filings by or from”

Attorney Rudenstein and did not know “what was filed[,]” but wished “to

preserve” the claim. Id. Appellant further stated “Trial [C]ounsel was

ineffective for failing to inform [him] of the Commonwealth’s plea offer[.]” Id.

While hybrid representation is not permitted, see Commonwealth v. Jette,

23 A.3d 1032, 1036 (Pa. 2011), we consider that the PCRA court requests an

evidentiary hearing and the Commonwealth does not object. Thus, we

conclude Appellant has sufficiently raised this issue before the PCRA court.

We agree with the court that remand for an evidentiary hearing is

proper. Thus, while we conclude no relief is due on Appellant’s first two issues,

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we vacate the March 2, 2018, order and remand for further proceedings to

determine whether Appellant knew of the plea offer relayed by the

Commonwealth.

In his last claim, Appellant argues the PCRA court erred when it did not

grant an evidentiary hearing on the issues raised in his amended PCRA

petition. Appellant’s Brief at 17. Appellant states “a court may not summarily

dismiss a PCRA petition when the facts alleged in the petition, if proven, would

entitle the Appellant to relief.” Id., citing Commonwealth v. Barbosa, 819

A.2d 81, 85 (Pa. Super. 2003). Appellant contends “[a] hearing should be

held on any issue that the PCRA court is not certain lacks merit.” Id. at 17-

18, citing Commonwealth v. Early, 546 A.2d 1236, 1240 (Pa. Super 1988).

The PCRA court found Appellant’s first two “claim[s] of ineffective

assistance of counsel [have] no arguable merit and [Appellant] has not been

prejudiced by the alleged error.” PCRA Ct. Op. at 11. As discussed above,

we agree, and therefore, no relief is due. However, for the reasons set forth

above, we remand on the issue of whether Trial Counsel was ineffective for

not notifying Appellant of a plea offer. See Commonwealth v.

Baumhammers, 92 A.3d 708, 726 (Pa. 2014) (“The PCRA court need not

hold a hearing on every issue appellant raises, as a hearing is only required

on ‘genuine issues of material fact.’”) (citation omitted).

Order affirmed in part and vacated in part. Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

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J-S09024-21

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2021

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