Com. v. Flores, A. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXANDER FLORES :
:
Appellant : No. 313 EDA 2024
Appeal from the PCRA Order Entered January 17, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003501-2015
BEFORE: BOWES, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 26, 2024
Alexander Flores appeals from the order that dismissed without a
hearing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
We affirm in part, vacate in part, and remand for further proceedings.
Appellant is serving a sentence of life imprisonment imposed following
his convictions for murder and other crimes. The PCRA court offered the
following summary of the underlying facts:
[On] the evening of December 15, 2011, a group of men, including
[Appellant], were hanging out in a school parking lot on the corner
of East Somerset Street and Coral Street in Philadelphia.
[Appellant] was the boss of a drug organization to which the other
men were connected. The conversation turned to who owed
money to [Appellant]. The exchange ended with [Appellant]
handing Randy Diaz a gun and ordering Diaz to kill Juan Modesto
Cruz. Diaz in return, directed [teenager] Christopher Martinez to
drive him around the block and when Diaz exited the vehicle for
Martinez to wait for him, leaving the car in gear for a quick
getaway. Having spotted Cruz in the 2000 block of East Auburn
Street, Diaz exited the vehicle, shot Cruz five times, killing him,
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and then jumped back in the car, fleeing the area with Martinez.
Officer[s] Timothy Murphy and [William] Toughill responded to a
radio call concerning gunshots, finding Juan Cruz lying on the
ground, suffering from multiple gunshots. Another responding
patrol car scooped up Mr. Cruz and rushed him to the hospital.
Twenty-eight days later, Cruz died of the gunshot wounds inflicted
on December 1[5], 2011.
Christopher Martinez testified [at Appellant’s subsequent trial]
that he had pled guilty to third degree murder in this case and
what occurred on the night of December 1[5], 2011, implicating
[Appellant] in the murder . . . . Agnes Rios testified that she was
the mother of Christopher Martinez and after he was arrested, she
was sleeping in her own house when two men entered her
bedroom, woke her up and told her she had to go outside, where
she was confronted by [Appellant,] who wanted a copy of the
statement her son had given to the police.
PCRA Court Opinion, 2/20/24, at 3 (citations omitted, paragraph break
added).
A jury convicted Appellant of first-degree murder, criminal conspiracy,
and firearms violations. This Court affirmed his judgment of sentence, and
our Supreme Court denied his petition for allowance of appeal on April 28,
2021. See Commonwealth v. Flores, 242 A.3d 437 (Pa.Super. 2020) (non-
precedential decision), appeal denied, 252 A.3d 1091 (Pa. 2021). Thus, his
judgment of sentence became final on July 27, 2021, when the period for him
to file a petition for a writ of certiorari in the U.S. Supreme Court expired.
See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. R. 13(1) (providing that the time
for filing a petition for a writ of certiorari is within ninety days of the
judgment).
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Appellant timely filed a counseled PCRA petition on July 25, 2022.
Therein, he raised a claim of after-discovered evidence, alleged trial counsel
ineffectiveness concerning the failure to call Randy Diaz as a witness and
advising Appellant not to testify, and asserted a right to relief based upon the
cumulative impact of all the claims. Appellant supplemented the petition with
additional factual allegations following a review of the case file maintained by
the district attorney’s office. Thereafter, the Commonwealth moved to dismiss
the petition, contending that the claims were belied by the record and without
merit. Appellant responded to the motion, contesting the Commonwealth’s
argument as to the after-discovered-evidence claim.
On December 13, 2023, the PCRA court issued notice of its intent to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a premature pro se notice of appeal on January 11, 2024. The
PCRA court entered its dismissal order on January 17, 2024, and this Court
deemed the instant appeal to flow therefrom pursuant to Pa.R.A.P. 905(a)(5)
(“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”). See also Commonwealth v. Williams, 151
A.3d 621, 624 (Pa.Super. 2016) (explaining that a pro se notice of appeal by
a represented defendant is an exception to the rule against hybrid
representation).
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Appellant presents the following questions for our consideration, which
we have re-ordered for ease of disposition:
I. Did the PCRA court err in finding, without a hearing, that
Appellant’s constitutional rights under the Fifth, Sixth and
Fourteenth Amendments were not violated by the
prosecutor’s failure to disclose that Christopher Martinez
received a benefit in exchange for his cooperation in this
case . . . ?
II. Did the PCRA court err in finding, without benefit of a
hearing, that Appellant’s rights under Article 1 § 9 [of] the
Constitution of the Commonwealth of Pennsylvania and the
Sixth and Fourteenth Amendments to the Constitution of the
United States of America to effective assistance of counsel
were not violated by trial counsel’s failure to call Randy
Diaz?
III. Did the PCRA court err in finding, without benefit of a
hearing, that Appellant’s rights under Article 1 § 9 [of] the
Constitution of the Commonwealth of Pennsylvania and the
Sixth Amendment to the Constitution of the United States
of America to effective assistance of counsel were not
violated when trial counsel advised Appellant not to testify
on his own behalf?
IV. Did the PCRA court err in finding, without a hearing on any
of the above claims, that Appellant’s constitutional right to
due process of law and a fair trial were not violated by the
cumulative impact of trial counsels’ ineffectiveness and the
after discovered evidence in violation of the Sixth
Amendment?
Appellant’s brief at 7 (unnecessary capitalization omitted).
We begin with the governing legal principles. “[W]e review an order
dismissing or denying a PCRA petition as to whether the findings of the PCRA
court are supported by the record and are free from legal error.”
Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned
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up). Concerning the PCRA court’s dismissal of Appellant’s claims without
conducting an evidentiary hearing, we observe that “there is no absolute right
to an evidentiary hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. McCready, 295 A.3d 292,
298 (Pa.Super. 2023) (cleaned up). Overall, “[i]t is an appellant’s burden to
persuade us that the PCRA court erred and that relief is due.” 1
Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(cleaned up).
We first address Appellant’s argument that the PCRA court improperly
denied his claim premised upon after-discovered evidence. To succeed on
such a claim, an appellant must establish that the evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).
Appellant claims that he is entitled to a new trial because Martinez, the
juvenile getaway driver who testified against Appellant at trial, was
subsequently sentenced to time-served pursuant to a deal with the
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1 Relief is not due if it is apparent from the certified record that the PCRA
court’s ruling should be affirmed on a basis other than its proffered one. See,
e.g., Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa.Super. 2019).
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Commonwealth that was not fully disclosed.2 In support, Appellant highlights
the Commonwealth’s internal emails from 2012 referencing Martinez as “the
juvenile cooperator,” indicating that Martinez’s family was “on board with
dealing favorably with the juvenile” to secure his testimony against his co-
conspirators, and stating that the prosecution was agreeable to Martinez
entering an open guilty plea to third-degree murder “but it would be nice if
we could actually use him as a witness against one of these other two guys.”
Id. at 33-35.
Appellant observes that Martinez testified against Appellant at the
preliminary hearing in 2015 and was released onto house arrest the following
year in what Appellant characterizes as “a possible reward for having done
so[.]” Id. at 36. In 2017, Martinez entered open guilty pleas to third-degree
murder and conspiracy. He then testified against Appellant at his 2019 trial,
indicating that he had not been promised anything in exchange for his
testimony but that he hoped for a lenient sentence. Then, as mentioned,
Martinez promptly received a sentence of time served after he helped secure
Appellant’s conviction. Further, Appellant notes, “[t]he Commonwealth paid
a significant amount of money to . . . relocate Martinez . . . after Appellant
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2 Although Appellant invoked Brady v. Maryland, 373 U.S. 83 (1963)
(providing that the prosecution must disclose information favorable to the
accused), in his PCRA petition, he does not mention or develop a Brady
analysis in his brief. Accordingly, we address Appellant’s claim solely under
the after-discovered-evidence rubric.
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was convicted due to threats that were allegedly made to his safety.” Id. at
37 n.2.
Appellant, opining that “[t]here would have been no possible reason to
delay Martinez[’s] sentence seven full years if there was not an understanding
that the sentence would be in some way contingent upon [his] testimony in
the Appellant’s trial,” therefore “believes and avers that it is more likely than
not that Martinez[’s] cooperation in this case formed the basis for the [c]ourt’s
sentencing Martinez to time served.” Id. at 38-39. He thus maintains that a
hearing is necessary for the various Commonwealth actors to be questioned
as to what Martinez was promised in exchange for his testimony. Id. at 40.
The PCRA court rejected Appellant’s claim on the basis that “the
sentence Martinez finally received cannot be considered after-discovered
evidence” given what evidence did come out at Appellant’s trial. See PCRA
Court Opinion, 2/20/24, at 11. The Commonwealth agrees with the
assessment that the new evidence is merely cumulative, and further argues
that Appellant has identified no evidence that there was “a sentencing deal
with the Commonwealth beyond what was previously available to the defense
and explored during trial.” Commonwealth’s brief at 16. Additionally, the
Commonwealth contends that Appellant’s intended use of the evidence that
Martinez was sentenced to time served would solely be to impeach Martinez.
Id.
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Following review of the certified record, we discern no basis to disturb
the PCRA court’s ruling. Appellant was fully aware as trial began that Martinez
had not been sentenced yet and hoped that he would be rewarded for his
testimony. In his opening statement, Appellant’s counsel posited that the
Commonwealth’s case hinged upon the testimony of Martinez, “who was
caught literally, pretty much red-handed, doing this, seen driving off in Randy
Diaz’s BMW.” N.T. Trial, 1/29/19, at 24. Counsel indicated that “Martinez
basically opted for the old strategy of ‘best defense is a good offense’ and
decided that the more people he [implicated], the better he would do. And
the story continued to build as he went along.” Id. Counsel continued that
“Martinez basically got a Get Out Of Jail Free card . . . in return for sticking to
the script” and stated that the jury would “hear again and again the favors he
received, the favorable treatment he got while on house arrest [and] the
whole course of this case,” and said “[t]hat’s what they are going to ask you
to convict [Appellant] based on.” Id. at 25.
When the Commonwealth called Martinez to testify, it established at the
outset that he had pled guilty to conspiracy and third-degree murder and was
awaiting sentencing. Id. at 44. Martinez stated that he had spent
approximately five years in jail on the charges and was exposed to a potential
of forty to eighty years of imprisonment when he was sentenced. Id. at 45-
46. Martinez indicated that no one had promised or guaranteed what his
sentence would be or anything else in return for his testimony. Id. On cross-
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examination, Martinez acknowledged that the “terms of his plea agreement”
were that he would “testify and the[ Commonwealth would] decide whether
or not [he had] been truthful and whether or not [he would] get the lenient
treatment.” Id. at 87. Martinez offered that “there ain’t no guarantee” that
he would receive a lenient sentence, but, despite facing up to eighty years, he
hoped that he would “never do another day in jail.” Id. at 87, 89.
From this, it is plain that Appellant is not entitled to relief. First and
foremost, he offers no evidence that Martinez’s sentence was imposed
pursuant to an undisclosed deal as opposed to the understanding that was
discussed at Appellant’s trial. Instead, he offers mere speculation and seeks
to have a hearing, hoping that a fishing expedition will produce actual
evidence.
Second, Appellant proposed to use the evidence “to show that Martinez
had a motive to lie and inculpate the Appellant.” Appellant’s brief at 41.
Despite his protestations to the contrary, offering reasons to challenge the
truthfulness of a witness constitutes the very definition of impeachment. See
IMPEACH, Black’s Law Dictionary (12th ed. 2024) (defining the term, in
pertinent part, as “To discredit the veracity of (a witness) <to impeach a
witness on cross-examination>”). Hence, it cannot support relief pursuant to
a claim of after-discovered evidence. See Pagan, 950 A.2d at 292.
Finally, proof that Martinez was sentenced to time served after
Appellant’s conviction is cumulative and corroborative of what the jury heard:
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Martinez had a motivation to testify against Appellant to the Commonwealth’s
satisfaction because the cooperation might lessen his sentence from forty-to-
eighty to zero years. See N.T. Trial, 1/29/19, at 44-46, 87-89. Therefore,
the PCRA court did not err in dismissing Appellant’s claim of after-discovered
evidence without a hearing.
In his next two issues, Appellant challenges the PCRA court’s denial of
his contentions that trial counsel’s performance was constitutionally deficient.
To prevail on these claims, Appellant must establish:
(1) that the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a reasonable basis
designed to effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable
probability that but for the act or omission in question the outcome
of the proceeding would have been different.
Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.Super. 2019)
(cleaned up). An appellate court is “not required to analyze the elements of
an ineffectiveness claim in any order; if a claim fails under any element of the
. . . test, we may proceed to that element first.” Commonwealth v. Rivera,
199 A.3d 365, 374 (Pa. 2018).
Initially, Appellant maintains that trial counsel was ineffective for failing
to call Diaz, the shooter, to testify that Appellant was not guilty of the murder.
He points to a letter that Diaz sent to Appellant and that Appellant forwarded
to trial counsel and the prosecution in 2015, after Diaz was convicted but
before Appellant was tried. Therein, Diaz lamented that Appellant was
implicated in the murder and advised him to tell his lawyer to call Diaz as a
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witness to testify that Appellant did not hand Diaz a gun or order him to kill
Cruz. See Appellant’s brief at 17-18. Appellant argues that counsel’s decision
not to call Diaz could not be strategic because counsel did not even interview
or speak with Diaz. Id. at 18. He suggests that it is probable that “Diaz would
testify truthfully and consistent with his letter in that he had already been
found guilty and had nothing more to lose from a penal standpoint.” Id. at
19.
The PCRA court explained its decision to dismiss Appellant’s request for
relief on this basis thusly:
The law is clear[:] a claim that counsel was ineffective for
failing to call a witness to testify lacks arguable merit when the
trial court conducted a colloquy of the defendant at trial and that
defendant agreed with his attorney’s decision not to present a
witness.
[Appellant] was colloqu[iz]ed as to whether he had any
witnesses he wished to present:
THE COURT: One other thing. Are there any other
witnesses that you wanted presented on your behalf?
THE DEFENDANT: No[,] sir.
MR. BERARDINELLI: One thing we should just add to
that response. We had brought down a witness-from
custody, Mr. Diaz, the shooter in the case--who is
currently doing life. I had an investigator go up and
interview him. [Appellant] and I have sat down and
reviewed the contents of that statement.
Based on what we see in terms of how it would fit
or not fit, actually, with our defense in this case, we’ve
made the strategic decision not to use him in this case.
But he is available and I’ve discussed that extensively
with [him].
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THE COURT: You agree with that as well?
THE DEFENDANT: Yes, sir.
THE COURT: All right. We’ll see you all tomorrow.
Appellant cannot now come forward and contradict his own
sworn statements to the trial court. [He] is bound by his
statements, under oath, to the trial court. The colloquy is clear
that Appellant was advised of his right to present the witness Diaz,
but he knowingly, voluntarily and intelligently declined to do so
and as such he is not entitled to any relief.
PCRA Court Opinion, 2/20/24, at 6-7 (cleaned up).
We discern no error or abuse of discretion on the part of the PCRA court.
“A defendant who voluntarily waives the right to call witnesses during a
colloquy cannot later claim ineffective assistance and purport that he was
coerced by counsel.” Commonwealth v. Lawson, 762 A.2d 753, 756
(Pa.Super. 2000). As our Supreme observed: “To hold otherwise would allow
a defendant to build into his case a ready-made ineffectiveness claim to be
raised in the event of an adverse verdict.” Commonwealth v. Paddy, 800
A.2d 294, 316 (Pa. 2002).
To the extent that Appellant maintains that his waiver was not knowing
and intelligent because counsel did not personally interview Diaz, see
Appellant’s brief at 22, the colloquy quoted above plainly reveals that
Appellant was aware that it was an agent of his counsel who conducted the
interview. Appellant does not suggest that a personal discussion by counsel
with Diaz would have led to the gathering of materially different information
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that would have changed his mind about agreeing to forgo calling him at trial.
Instead, Appellant is seeking to assert the precise type of claim that our High
Court eschewed in Paddy. As such, the PCRA court properly rejected it. 3
Appellant’s remaining ineffectiveness claim concerns counsel’s advice
that Appellant not testify in his own defense. Stated succinctly by our federal
brethren concerning the protections of the United States Constitution: “[T]he
right to counsel guarantees a defendant the right to receive advice concerning
his decision to testify, while the right to testify guarantees a defendant the
personal right to choose whether to testify.” United States v. Anderson, 1
F.4th 1244, 1254 (11th Cir. 2021). As this Court has explained in more detail:
The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation with
counsel. In order to sustain a claim that counsel was ineffective
for failing to advise the appellant of his rights in this regard, the
appellant must demonstrate either that counsel interfered with his
right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision to
testify on his own behalf.
Commonwealth v. Washington, 269 A.3d 1255, 1264 (Pa.Super. 2022) (en
banc) (cleaned up).
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3 Since we reject this claim for lack of arguable merit, Appellant’s fourth
appellate issue alleging cumulative prejudice is unavailing. See
Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012) (“[T]o the extent
claims are rejected for lack of arguable merit, there is no basis for an
accumulation claim. When the failure of individual claims is grounded in lack
of prejudice, however, then the cumulative prejudice from those individual
claims may properly be assessed.” (cleaned up)).
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The prejudice analysis in addressing a claim that counsel was ineffective
in his consultation calls for “whether the result of the waiver proceeding would
have been different absent counsel’s ineffectiveness, not whether the outcome
of the trial itself would have been more favorable had the defendant taken the
stand.” Id. at 1264 (cleaned up). Counsel’s duty to consult with the
defendant to enable him to make a knowing decision about exercising his right
to testify encompasses providing accurate information about the ramifications
of the decision, i.e., “the pitfalls associated with exercising that right,” such
as the possibility of impeachment. See Commonwealth v. Daniels, 999
A.2d 590, 596 (Pa.Super. 2010).
Here, Appellant participated in the following colloquy concerning his
decision to waive his right to testify:
THE COURT: . . . How old are you?
[APPELLANT]: Thirty-two.
THE COURT: How far did you go in school?
[APPELLANT]: Eleventh.
THE COURT: Read, write and understand the English language?
[APPELLANT]: Yes.
THE COURT: Are you under the influence of any drugs or alcohol?
[APPELLANT]: No, sir.
THE COURT: Have you ever been diagnosed with a mental
disability?
[APPELLANT]: No, sir.
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THE COURT: The Commonwealth has rested, which means [it is]
no longer going to present any more evidence at this particular
time.
Now, it’s time for your defense to proceed. One of the issues
of the defense proceeding is whether or not you wish to take the
stand in your own defense. You have a [c]onstitutional right to
take the stand in your own defense. You have as [c]onstitutional
right not to take the stand, at which time I tell the jury that they
cannot hold any adverse inference as a result of that.
Now, have you had enough time to speak with your attorney
about that?
[APPELLANT]: Yes.
THE COURT: Are you satisfied with his representation up until
now?
[APPELLANT]: Yes.
THE COURT: It’s not his decision, though. You should listen to
what he has to say because he’s an excellent, excellent attorney
that’s been around for many, many years. I know him to be a
great attorney. However, the decision is not his. The decision is
yours, and yours alone, as to whether or not you wish to take the
stand.
So did you talk to him about whether or not you should testify
in this matter?
[APPELLANT]: Yes, sir.
THE COURT: And have you come to a conclusion as to whether
or not?
[APPELLANT]: Yes, sir.
THE COURT: And what is that conclusion?
[APPELLANT]: I would not like to take the stand.
THE COURT: You don’t want to?
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[APPELLANT]: No.
THE COURT: All right.
N.T. Trial, 1/30/19, at 172-74.
Appellant argues that his waiver of the right to testify was not knowing
and voluntary, despite the colloquy, because counsel’s advice that he should
not testify was not reasonably supported. See Appellant’s brief at 27. He
asserted in his verified statement filed in the PCRA court that counsel “never
really discussed the pros and cons of testifying,” but rather “just said ‘I got
this.’” See Motion to Supplement, 1/29/23, at unnumbered Exhibit.
Appellant, having since learned of trial counsel’s consultation
obligations, maintains that there were no considerations, such as prior
inconsistent statements or crimen falsi convictions, with which he was subject
to impeachment. See Appellant’s brief at 27. He posits that, given the lack
of forensic evidence implicating him in the crime and the decision not to call
Diaz, Appellant’s own testimony was the only means to inform the jury of his
version of events, which he summarized as follows:
I was chillin driving around with some of my boys just getting high
and selling dope. It got slow so we ended up on the block in the
school yard. It was me, John, Sperm, Bug, Mark, Gordo, Eric,
Jeremy, Randy, Amanda and few neighbors. So I was in my truck
with Bug, Mark, and Jeremy. I had my door open and Amanda
was at the window talking to us and Randy was at my door.
Somebody asked me “Yo, [Appellant], what would you do if
someone said they was going to shoot you?” So I said, “I shoot a
nigga before they shoot me.” I never give anyone the green light
to kill anyone.
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I then got a phone call and I left to West Philly to go and pick up
my daughter[’s] godfather. I got on the 95 that was when I got
a phone call that white boy got shot. I knew white boy all my life.
I looked up to white boy and his friends. I never had a fight with
him. Not like Randy Diaz and his brother[-]in[-]law, Christopher
Martinez.
See Motion to Supplement, 1/29/23, at unnumbered Exhibit. Appellant insists
that, under these circumstances, trial counsel’s advice that he not testify
rendered his waiver involuntary.
The PCRA court held that Appellant is barred from pursuing this
ineffectiveness claim because doing so would require him to “assert that he
was lying under oath when he attested at the time of trial that he had ample
time to discuss the issue with counsel and that he was making the decision
not to testify.” PCRA Court Opinion, 2/20/24, at 9. It further opined that
Appellant offered no support for a finding that counsel interfered with his right
to testify or offered unreasonable advice that negated the voluntariness of the
waiver of that right. Id. at 9-10. The Commonwealth additionally argues for
affirmance because counsel had a reasonable basis for recommending that
Appellant not take the stand given his proposed testimony was “that he was
‘getting high and selling dope’ and that he volunteered that he would
preemptively shoot someone.” Commonwealth’s brief at 11.
Upon review, we are constrained to agree with Appellant that the PCRA
court erred in dismissing this claim without a hearing. In marked contrast to
his claim concerning counsel’s failure to call Diaz as a witness, here Appellant
has alleged facts that, if deemed credible, could undermine the soundness of
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counsel’s advice and Appellant’s decision to heed it. Further, those facts, i.e.,
that counsel neglected to provide a legally-adequate consultation with
Appellant to inform his decision on whether to testify, are not in conflict with
his on-the-record representations that he had sufficient time to talk to counsel
about the issue and did talk to him in a manner that was satisfactory at that
point in time. Consequently, this is not a case in which Appellant’s claim is
barred by statements he gave under oath. Cf. Commonwealth v. Lawson,
762 A.2d 753, 755 (Pa.Super. 2000) (holding defendant could not pursue
claim that counsel interfered with his right to testify when he had said under
oath that no one forced him to give up the right). Moreover, since the certified
record does not reveal the foundations of counsel’s advice, we cannot follow
the Commonwealth’s suggestion to reject the claim because counsel had a
reasonable basis. See Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa.
2003) (“[T]he court is not to glean, surmise, or speculate with regard to the
strategy of counsel except in those rare instances where his strategy is clear
and obvious from the record under review.”).
Therefore, we hold that Appellant is entitled to a hearing on his claim
that trial counsel was ineffective in advising him not to exercise his right to
testify.4 Accordingly, we vacate the PCRA court’s order insofar as it denied
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4 We note that the appellate decisions on this issue relied upon by the PCRA
court and parties typically entailed claims that were disposed of following a
hearing. See, e.g., Commonwealth v. Nieves, 746 A.2d 1102, 1106 (Pa.
(Footnote Continued Next Page)
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that claim without a hearing. For the reasons stated herein, we affirm the
order in all other respects.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Date: 11/26/2024
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2000) (vacating and remanding for a new trial where counsel erroneously
advised the defendant that he could be impeached by his criminal record and
the testimony showed that he had no “alternative reasonable strategy for
advising Appellant not to testify”); Commonwealth v. Hall, 701 A.2d 190,
202 (Pa. 1997) (concluding that the defendant was properly advised by
counsel based upon the court’s factual findings and credibility
determinations); Commonwealth v. Sandusky, A.3d 1033, 1076 (Pa.Super.
2019) (affirming PCRA court’s conclusion that the defendant’s waiver of the
right to testify was not rendered involuntary by counsel’s advice where the
hearing evidence supported its findings that the defendant’s decision “was
made after a full consultation with counsel, and was based on counsel’s advice
regarding the benefits and risks of testifying”).
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