Com. v. Greer, R.

J-S32023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHAAN LONDALE GREER :
:
Appellant : No. 386 MDA 2022
Appeal from the PCRA Order Entered January 21, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005885-2010
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 20, 2022
Appellant, Rashaan Londale Greer, appeals from the post-conviction
court’s January 21, 2022 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we vacate the court’s order and remand for further proceedings.
We need not reproduce the facts of Appellant’s underlying convictions
for purposes of his present appeal. We only note that in July of 2011, a jury
convicted him of first-degree murder and carrying a firearm without a license.
He was sentenced on August 24, 2011, to a term of life imprisonment, without
the possibility of parole, for his murder conviction, and a consecutive term of
3½ to 7 years’ imprisonment for his firearm crime. Appellant filed a timely
direct appeal and, after this Court affirmed his judgment of sentence, our
Supreme Court denied his subsequent petition for permission to appeal. See
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Commonwealth v. Greer, 55 A.3d 149 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 63 A.3d 1244 (Pa. 2013).
Appellant filed a timely, pro se PCRA petition on July 3, 2013. Counsel
was not appointed to represent Appellant until August of 2017. Thereafter,
that attorney — Lori Yost, Esq. — filed several amended petitions on
Appellant’s behalf. On February 21, 2020, Attorney Yost withdrew her
appearance, and Anthony J. Tambourino, Esq., entered his appearance on
Appellant’s behalf. On February 3, 2021, Attorney Tambourino filed another
amended PCRA petition. A hearing was conducted on June 21, 2021. On
January 21, 2022, the court issued an order and opinion denying Appellant’s
PCRA petition.
Appellant filed a timely notice of appeal, and he complied with the PCRA
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court thereafter issued an order indicating
that it was relying on the rationale in its January 21, 2022 opinion in support
of its decision to deny Appellant’s petition. On appeal, Appellant states four
issues for our review:
1. Trial counsel was ineffective for failing [to] investigate and
present character witnesses at trial.
2. Trial counsel was ineffective when he failed to determine and
use at trial the complete relevant criminal record for
Commonwealth eyewitness, Wanda Clark, through the discovery
process or independent investigation. The complete rap sheet for
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Wanda Clark was Brady[1] material, was withheld by the
prosecution, and relevant to her credibility.
3. Trial counsel was ineffective for failing to request a voluntary
manslaughter instruction when the evidence supported such an
instruction.
4. Trial counsel was ineffective for failing to present a defense of
imperfect self-defense at trial when the evidence supported such
a defense, and further evidence could have been developed at trial
to effectively support such a defense and a voluntary
manslaughter instruction.
Appellant’s Brief at 4.
Before we review Appellant’s claims, we must address an application for
remand filed by Attorney Tambourino on April 21, 2022, which this Court
deferred to the present panel for disposition. In that application, Attorney
Tambourino states that he received a letter from Appellant on April 18, 2022,
requesting that counsel file a petition for remand under our Supreme Court’s
recent decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), so
that Appellant can allege “additional issues of ineffective assistance of … [trial]
counsel, and ineffective assistance against PCRA counsel.” Application for
Remand, 4/21/22, at 3 ¶ 12. Specifically, Appellant seeks to argue that
Attorney Tambourino was ineffective for not pursuing seven additional
ineffectiveness claims regarding his trial counsel. See id. at 4-5. Appellant
also wishes to claim that Attorney Tambourino was ineffective for “failing to
present competent evidence at the PCRA hearing proving that trial counsel
easily could have obtained [eyewitness] Wanda Clark’s complete criminal
____________________________________________
1 Brady v. Maryland, 373 U.S. 83 (1963).
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record[,]” and for “failing to investigate and present character witnesses at
the PCRA evidentiary hearing who were competent to testify to [Appellant’s]
reputation for law-abidingness and peacefulness at the relevant time period
of the crime.” Id. at 6. Attorney Tambourino concludes that, “[u]nder the
circumstances, … remand is necessary so that the PCRA [c]ourt may conduct
a hearing to determine whether Appellant should be appointed new PCRA
counsel for his PCRA appeal.” Id.
We agree with Attorney Tambourino. In Bradley, the Pennsylvania
Supreme Court expanded the opportunity for a PCRA petitioner to raise claims
of PCRA counsel’s ineffectiveness. Previously, “the sole method by which a
petitioner c[ould] challenge the ineffectiveness of PCRA counsel [wa]s by filing
… a response to the PCRA court’s Rule 907 dismissal notice.” Bradley, 261
A.3d at 386. The Bradley Court abandoned that approach, holding “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.” Id. at 401 (emphasis
added). Here, Appellant is seeking to raise ineffectiveness claims against his
present counsel, Attorney Tambourino. He has not been appointed new
counsel, and he is not proceeding pro se. Thus, we agree with Attorney
Tambourino that we must remand for the PCRA court to appoint Appellant new
counsel who can assist him in raising his PCRA-counsel ineffectiveness claims
on appeal.
Moreover, the Bradley Court advised that,
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the appellate court may need to remand to the PCRA court for
further development of the record and for the PCRA court to
consider such claims as an initial matter. Consistent with our prior
case law, to advance a request for remand, a petition would be
required to provide more than mere boilerplate assertions of PCRA
counsel’s ineffectiveness…; however, where there are material
facts at issue concerning [claims challenging counsel’s
stewardship] and relief is not plainly unavailable as a matter of
law, the remand should be afforded.
Id. at 402.
In this case, Appellant has presented more than mere boilerplate
allegations of Attorney Tambourino’s ineffectiveness. We conclude that it is
therefore appropriate for the PCRA court to develop the record regarding these
issues and consider them in the first instance. Accordingly, we vacate the
PCRA court’s order denying Appellant’s petition and remand for further
proceedings.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2022
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