Com. v. Rogers, K.

J-A13012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM ROGERS :
:
Appellant : No. 659 EDA 2019
Appeal from the PCRA Order Entered November 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012380-2013
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 19, 2022
Appellant, Kareem Rogers, appeals from the order entered November
27, 2018, dismissing, without an evidentiary hearing, his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”).1 For the reasons set
forth below, we vacate the order entered on November 27, 2018, and
remand this matter to the PCRA court for an evidentiary hearing to address
Appellant’s claim asserting ineffective assistance on the part of original PCRA
counsel.
This case arose out of the fatal shooting of Stacey Berry on March 26,
2013. At the conclusion of trial on April 17, 2015, a jury found Appellant
guilty of murder in the first degree, firearms not to be carried without a
license, carrying firearms in public in Philadelphia, and possessing an
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1 42 Pa.C.S.A. §§ 9541-9546.
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instrument of crime.2 The same day, the trial court sentenced Appellant to
life without the possibility of parole for murder, and no further penalty on
the remaining charges. This Court affirmed Appellant’s judgment of
sentence on February 3, 2017. See Commonwealth v. Rogers, 2017 WL
465327 (Pa. Super. 2017) (unpublished memorandum). Appellant did not
seek discretionary review with our Supreme Court.
On March 6, 2018, Appellant filed a timely pro se PCRA petition, his
first, asserting that trial counsel was ineffective in failing to call two
witnesses at trial, Kyaun Kelley and Shyla Jackson. See Pro Se PCRA
Petition, 3/6/18, at 12.3 Within his petition, Appellant asserted that Kelley
was a witness and possible participant in the crime. Id. Kelley allegedly
met twice with trial counsel and offered his version of events surrounding
the shooting. Id. Trial counsel elected not to call Kelley as a witness,
however, because she feared Kelley might face criminal charges since
another witness, Kaeri Alvarez, allegedly identified Kelley as the shooter.
Id. Appellant’s petition also alleged that Kelley told trial counsel that
Jackson, Kelley’s girlfriend, possessed “useful information” about Appellant’s
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2 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, and 907(a), respectively.
3 Appellant’s pro se PCRA petition utilized a pre-printed form, which included
ten pre-numbered pages. Appellant then attached additional handwritten
pages to the pre-printed forms. For citation purposes, we identify the
handwritten pages of Appellant’s petition using consecutive page numbers
starting with page 11.
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relationship with the victim and the circumstances that led up to, and that
followed, the shooting. Id. Appellant’s petition alleged that trial counsel
failed to contact Jackson. Id. The petition requested an evidentiary hearing
but, while Appellant included an address and telephone number for Jackson,
the filing did not include a certification showing contact information for
Kelley. See id. at 7, 12; see also Pa.R.Crim.P. 902(A)(15) (if a petition
requests an evidentiary hearing, it “shall include a signed certification as to
each intended witness, stating the witness’s name, address, and date of
birth, and the substance of the witness’s testimony”).
The PCRA court appointed original PCRA counsel, who filed a
Turner/Finley4 no-merit letter on September 3, 2018. In his petition to
withdraw, original PCRA counsel explained that he hired a private
investigator to contact Kelley and Jackson. According to original PCRA
counsel, “[t]hose efforts proved unsuccessful. [Kelley is deceased and
Jackson did] not return[] calls from the undersigned.” No-Merit Letter,
9/3/18, at 1. Original PCRA counsel did not address Appellant’s claims
asserting that trial counsel was ineffective in failing to call Kelley and failing
to interview Jackson. Id. at 3. Rather, original PCRA counsel stated that
trial counsel “appeared well-prepared, and her approach was tediously
thorough,” where she “examined and re-examined virtually every witness.”
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4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Id. Original PCRA counsel also addressed a possible self-defense claim, but
opined that it was presented and rejected by the trial court and was not
supported by the evidence . Id. Finally, as to Jackson, original PCRA
counsel concluded he could not assert a viable after-discovered evidence
claim since Jackson was known to Appellant at the time of the shooting and
at the time of trial. Id., citing Commonwealth v. D’Amato, 856 A.2d 806(Pa. 2004).
The PCRA court issued a Rule 907 notice of intent to dismiss on
October 22, 2018, based on original PCRA counsel’s determination that
Appellant’s claims lacked merit. Appellant’s pro se response, filed on
November 9, 2018, asserted that original PCRA counsel was ineffective in
failing to amend the petition to include a claim asserting that trial counsel
was ineffective for failing to raise a self-defense claim. Appellant did not
respond to the assertions contained in the no-merit letter, nor did he raise
additional support for his initial PCRA claim. Consequently, on November
27, 2018, the PCRA court dismissed Appellant’s PCRA petition pursuant to
original PCRA counsel’s no-merit letter. This timely appeal followed.5, 6
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5 The PCRA court did not order Appellant to file a concise statement pursuant
to Rule 1925(b), but filed its Rule 1925(a) opinion on April 12, 2019.
6 Appellant appealed pro se on December 27, 2018. It appears that since
that time, adjudication of his appeal was delayed by the need to remand for
transcripts, dismissal and reinstatement of the appeal owing to an
improperly filed pro se brief, extension of briefing deadlines following
(Footnote Continued Next Page)
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With the aid of privately retained, current PCRA counsel, Appellant now
raises the following issue for our review:
Whether the effort put forth by court appointed [original PCRA]
counsel was sufficient to establish that the witnesses presented
in the pro se petition were not available? [7]
Appellant’s Brief at 6.
Preliminarily, we must address whether Appellant is permitted to raise
a claim challenging the ineffectiveness of original PCRA counsel for the first
time on appeal. Recently, in Commonwealth v. Bradley, 261 A.3d 381(Pa. 2021), our Supreme Court revised the procedure by which PCRA
petitioners may raise the ineffectiveness of PCRA counsel. Previously, “the
sole method by which a petitioner [could] challenge the ineffectiveness of his
PCRA counsel [was] through the filing of a response to the PCRA court’s Rule
(Footnote Continued) _______________________
Appellant’s retention of current PCRA counsel and a subsequent remand for
issues concerning current PCRA counsel’s abandonment for failure to file a
timely brief. Consequently, four years have elapsed without a disposition in
this appeal.
7 We have edited current PCRA counsel’s statement of the issue raised on
appeal to omit a suggestion that Appellant’s PCRA petition was untimely.
The timeliness of Appellant’s PCRA petition is not in dispute. See
Commonwealth’s Brief at 7 (“As an initial matter, the Commonwealth notes
that [Appellant’s] PCRA petition was timely filed.”). Appellant’s judgment of
sentence became final on March 6, 2017, the Monday following the
expiration of the 30-day period of time for filing a petition for allowance of
appeal with our Supreme Court. See 42 Pa.C.S.A. §9545(b)(3); 1 Pa.C.S.A.
§ 1908 (stating that, whenever the last day of a period of time referred to in
a statute “shall fall on Saturday or Sunday [] such day shall be omitted from
the computation.”). Accordingly, Appellant’s March 6, 2018 petition was
timely.
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907 dismissal notice.”8 Id. at 386. The Court emphasized that the PCRA
framework “created a collateral review process under which a petitioner will
be able, as a practical matter, to file only a single, counseled petition for
relief.” Id. at 391.
This structure, however, places great importance upon the
competency of initial PCRA counsel. As noted by Justice Saylor
in [Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001)],
“[t]he nature of this scheme places substantial responsibility
upon PCRA counsel to properly identify claims implicating a right
to relief and to present them in a form which would invoke
merits review. Indeed, particularly in light of the time limitation
now imposed under the PCRA, a substantial default by
post-conviction counsel may ultimately foreclose merits review
of a claim.” [Id. at 524]. Given the rule-based right to effective
assistance of counsel, as well as the crucial nature of
post-conviction representation, it is essential that a petitioner
possess a meaningful method by which to realize his right to
effective PCRA counsel.
Bradley, 261 A.3d at 401. In view of the Supreme Court’s conclusion that
the Rule 907 method is unworkable, petitioners may now raise layered
claims of ineffective assistance of PCRA counsel for the first time on appeal if
that is the earliest practical opportunity to do so. See Commonwealth v.
Crumbley, 270 A.3d 1171, 1175 (Pa. Super. 2022). Instantly, the PCRA
court did not require Appellant to file a Rule 1925(b) concise statement.
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8 Appellant, pro se, complied with this procedure in his response to the Rule
907 notice, however he raised an issue different than the one he presents on
appeal. Pursuant to the dictates of Bradley, we do not limit Appellant’s
claim herein. See Bradley, 261 A.3d at 398-399 (outlining the “almost
insurmountable difficulties” placed on a PCRA petitioner under the Rule 907
method).
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Therefore, the current appeal is the first practical opportunity for Appellant
to raise his claims of original PCRA counsel’s ineffectiveness. Accordingly,
we will review his claim.
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing,
such a decision is within the discretion of the PCRA court and will
not be overturned absent an abuse of discretion.
* * *
It is well settled 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. To obtain reversal of a PCRA
court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a
hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 327-328 (Pa. Super. 2019)
(cleaned up; citations and quotation marks omitted).
Instantly, Appellant challenges the adequacy of original PCRA counsel’s
investigation of his proffered witnesses, Kelley and Jackson. Appellant’s
Brief at 9. Recall that the investigation of original PCRA counsel revealed
that Kelley was deceased, and Jackson was unavailable. In contrast, within
his appellate brief, Appellant asserts the investigation of current PCRA
counsel uncovered a current address for Kelley as of 2021 and showed that
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Jackson was now willing to communicate with Appellant’s current PCRA
counsel. Appellant’s Brief at 9. Presumably, Appellant’s present claim
before us asserts that, if original PCRA counsel had conducted a thorough
and diligent investigation, he would have uncovered facts to support a claim
of ineffective assistance of trial counsel within an amended PCRA petition
rather than filing the no-merit letter on which the PCRA court based its
dismissal. Thus, Appellant’s claim of original PCRA counsel’s ineffectiveness
would potentially entitle him to relief in the form of the reinstatement of his
underlying claim of trial counsel’s failure to call and interview these
witnesses. In turn, if Appellant received the opportunity to further develop
his original claim and could successfully demonstrate that trial counsel was
ineffective, then Appellant would be entitled to collateral relief, perhaps in
the form of a new trial.
Regrettably, current PCRA counsel’s brief lacks the detail needed to
make these substantive grounds for relief readily apparent from his
appellate submission.9 Nevertheless, current PCRA counsel has come
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9 The appellate brief includes no citation to relevant authority, no
identification of the three-pronged analysis of ineffective assistance of
counsel claims, no development of a layered ineffectiveness claim, no
mention of the five-element prejudice analysis for failure to interview and
call witnesses, and, most importantly, no discussion of how the facts and
circumstances of Appellant’s claims fit into each prong and element of this
legal framework. Such deficient briefing would justify waiver; however, we
follow our Supreme Court’s guidance to protect a PCRA petitioner’s
rule-based right to effective counsel by remanding this case for proper
(Footnote Continued Next Page)
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forward with a reasonably definitive, but divergent, set of factual allegations
surrounding the investigation into the whereabouts and availability of Kelley
and Jackson. As such, current counsel thus presents facts which, if true,
suggest that Kelley may be alive, and that Jackson may be willing and
available to communicate with Appellant’s current PCRA counsel. Although
current PCRA counsel leaves many matters unaddressed, we conclude that,
at a minimum, he has identified certain genuine issues of fact which, if
resolved in Appellant’s favor, could potentially support a viable claim of
layered ineffective assistance of counsel. Therefore, pursuant to Bradley,
these contentions should be explored further by the PCRA court. Hence, we
vacate the order dismissing Appellant’s petition and remand this matter for
further proceedings aimed at assessing whether original PCRA counsel was
ineffective and, if so, whether his deficient performance could have deprived
Appellant of a right to collateral relief on grounds that trial counsel was
ineffective in failing to call Kelley as a witness or failing to investigate
Jackson.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
(Footnote Continued) _______________________
development of Appellant’s claims in the lower court. See Commonwealth
v. Cousar, 154 A.3d 287, 312 (Pa. 2017) (determining that, in a PCRA case
with deficient briefing, “[a]lthough we could properly determine appellant’s
argument is waived on this basis, [] we conclude a merits determination is
the better course”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2022
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