Com. v. Durrett King, C.

J-A09037-18
2018 PA Super 239COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY M. DURRETT KING :
:
Appellant : No. 17 WDA 2017
Appeal from the PCRA Order December 13, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010053-2013
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
CONCURRING AND DISSENTING OPINION BY BOWES, J.:
FILED AUGUST 28, 2018
While I agree with the learned Majority’s conclusion that the PCRA court
erred in dismissing Appellant’s PCRA petition, I do not believe that an
evidentiary hearing is required to determine whether trial counsel had a
reasonable basis for not raising the defense for fleeing or attempting to elude
police officer set forth in Section 3733(c)(1). Instead, as the record clearly
establishes that the omission of trial counsel had no reasonable basis, I believe
that relief should be granted, and the case should simply be remanded for a
new trial.
In my view, the Majority correctly determined that a police vehicle’s
“lights and siren” do not constitute “markings” for purposes of determining
whether a police vehicle is “unmarked” under 75 Pa.C.S. § 3733(c)(1), and,
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consequently, that Appellant’s underlying claim that trial counsel was
ineffective for failing to raise the defense has merit. I also agree with the
Majority’s finding that Appellant suffered prejudice as a result of trial counsel’s
failure to raise the defense.
On the record before us, I believe that an evidentiary hearing to afford
trial counsel an opportunity to explain why he did not raise the defense is
unnecessary. While I am mindful of our Supreme Court’s preference for a
hearing on counsel’s strategy before venturing to hold that counsel lacked a
reasonable basis for his or her actions or inactions, it is not a mandatory rule
to be applied in all cases. See Commonwealth v. Colavita, 993 A.2d 874,
895 (Pa. 2010) (“As a general rule, a lawyer should not be held ineffective
without first having an opportunity to address the accusation in some
fashion.”) (emphasis added); see also Commonwealth v. Turner, 365 A.2d
847, 849 (Pa. 1976) (“Where . . . it is impossible to tell from the record
whether or not the action of trial counsel could have had a rational basis, . . .
remand for an evidentiary hearing at which trial counsel may state his reasons
for having chosen the course of action taken . . .” is appropriate) (emphasis
added).
Our High Court has held that a hearing is not required when the record
on appeal clearly shows that there could have been no reasonable basis for
counsel’s inaction. See Commonwealth v. McGill, 832 A.2d 1014, 1022
(Pa. 2003) (holding that when the record clearly establishes that the act or
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omission of trial counsel was without a reasonable basis, this Court may
resolve the reasonable basis prong absent a remand for an evidentiary hearing
as to counsel’s strategy); accord Turner, supra at 849 (holding that no
evidentiary hearing is necessary “[w]here the record on appeal clearly shows
that there could have been no reasonable basis for a damaging decision or
omission by trial counsel”).
In the instant case, the record on appeal clearly shows that there could
have been no reasonable basis for trial counsel’s failure to raise the defense
for fleeing or attempting to elude police officer set forth in Section 3733(c)(1).
As the Majority observes,
There is no dispute in this matter that the car at issue did not
display any decals or graphics identifying it as a police vehicle.
The testimony at trial of the detectives who arrested Appellant
unequivocally indicates that they were driving an unmarked police
vehicle that only had lights and a siren. Additionally, the record
reflects that at the time they were pursuing Appellant, the
detectives were not in uniform, but were in plain clothes.
Majority Opinion at 10-11 (citation to record omitted). On this basis, the
Majority held that because the police vehicle that pursued Appellant was
unmarked, and the officers inside that unmarked vehicle were not in uniform,
Appellant’s claim regarding the defense of Section 3733(c)(1) has merit, and
Appellant was prejudiced by trial counsel’s inaction. Id.
This jurist cannot imagine any reasonable basis for trial counsel not to
raise a statutorily-provided defense to which his client is unquestionably
entitled to assert. See Colavita, supra at 887 (“A finding that a chosen
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strategy lacked a reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success substantially
greater than the course actually pursued.”). Requiring the PCRA court to
conduct another evidentiary hearing, the outcome of which would be a
foregone conclusion, would be a waste of judicial resources and is unnecessary
under the circumstances presented herein. See Commonwealth v. Schultz,
484 A.2d 146, 148 n.4 (Pa.Super. 1984) (granting new trial rather than
evidentiary hearing, where this Court found counsel’s actions were
unsubstantiated, and a remand for an evidentiary hearing would be a waste
of precious judicial time). For this reason, I would simply grant relief, and
remand the case for a new trial.
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