Com. v. Muldrow, T.

J-S38026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREEK AZIZ MULDROW :
:
Appellant : No. 1054 EDA 2022
Appeal from the PCRA Order Entered March 3, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002755-2015
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
CONCURRING MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 4, 2023
I agree with the Majority decision. I write separately to address a
procedural issue that remains unresolved in our law. In Commonwealth v.
Bradley, 261 A.3d 381, 401 (Pa. 2021), our Supreme Court held that “a PCRA
petitioner may, after a PCRA court denies relief, and after obtaining new
counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the
first opportunity to do so, even if on appeal.” This decision ensured that
defendants would have competent counsel through the entirety of their legal
proceedings, including a first, counseled PCRA petition.
In Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) the
high court expanded on Bradley, noting that when a defendant raises
ineffectiveness of PCRA counsel for the first time on appeal, a remand to the
PCRA court may be necessary when there are “material facts at issue
concerning claims challenging counsel’s stewardship and relief is not plainly
J-S38026-22
unavailable as a matter of law.” The court also stated that Rule of Appellate
Procedure 302(a) which provides that “issues no raised in the trial court are
waived and cannot be raised for the first time on appeal” does not pertain to
this scenario. Id.Absent from these decisions, however, is how or exactly when a PCRA
petitioner must raise the issue of PCRA counsel’s ineffectiveness. Notably, in
Parrish, the petitioner filed a pro se amended 1925(b) concise statement of
issues on appeal. Writing for the majority, Justice Donahue found that Parrish
“adequately raised and preserved his layered claim of the ineffective
assistance of trial and initial PCRA counsel by raising it at the first opportunity
to do so, specifically in his [Rule] 1925(b) Statement and in his brief filed with
[the Supreme Court] in this appeal.” Parrish, 273 A.3d at 1002.
Here, the Appellant did not raise the issue until the filing of his appellate
brief. Since our high court in Bradley and Parrish held the petitioner must
raise the issue of PCRA counsel’s ineffectiveness “at the first opportunity to do
so,” and since the Commonwealth did not claim that Appellant waived his
claim by not raising it sooner (i.e., in his original or an amended 1925(b)
statement), I believe Appellant satisfied the requirement by raising it for the
first time in his appellate brief. Compare Commonwealth v. Womack,
2022 WL 17099016 (Pa. Super. 2022) (non-precedential decision) (agreeing
with the Commonwealth’s waiver argument when the petitioner did not raise
his claim of PCRA counsel’s ineffectiveness in his Rule 1925(b) statement, but
rather, for the first time in his appellate brief).
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I realize that the issue of PCRA’s counsel’s ineffectiveness may rise not
only at the proceeding in the PCRA court, but also during the appeal of the
PCRA petition. As such, the “earliest possible opportunity” may vary
depending on the circumstances. I caution defendants and their counsel to
be wary of this and not delay in raising the issue; otherwise, the issue may
be waived.
Judge Sullivan joins the concurring memorandum.
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