Com. v. Dodds, R.

J-S59030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD M. DODDS : No. 2222 EDA 2018
Appeal from the PCRA Order Entered June 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014515-2010
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: Filed: September 24, 2020
The Commonwealth appeals from the PCRA court’s order granting the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition filed by
Appellee Richard M. Dodds. The Commonwealth contends, among other
things, that the PCRA court erred by holding that Appellee established
prejudice from his trial counsel’s failure to timely inquire into Appellee’s
mental health. We agree with the Commonwealth and reverse the PCRA
court’s order.
We state the facts as set forth in this Court’s decision on direct appeal:
On October 31, 2010, Ian Hirst–Hermans (“Hirst–Hermans”),
Justin Boylan (“Boylan”), Vincent Gasparo (“Gasparo”), and
Christian Succecci (“Succecci”) attended a party in . . .
Philadelphia. All attended Temple University. Before attending
the party they visited other friends, and beginning at 8:00 p.m.,
along with Andres Choi (“Choi”) and Austin Heron (“Heron”),
they walked to Brian Jerome (“Jerome”)’s house for the party.
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After arriving, the group greeted friends. Hirst–Hermans and
Boylan also spoke with two girls they did not know, Shannon
Bouvia (“Bouvia”) and Anna Marczak (“Marczak”), who were in
costume as “bunnies.” While they were downstairs, [Appellee]
confronted Hirst–Hermans for talking to Bouvia, and Hirst–
Hermans walked away. At one point, Boylan noticed [Appellee]
watching them intently from the opposite side of the kitchen.
Although he and Hirst–Hermans ignored [Appellee], the glares
continued. Boylan asked Bouvia if she knew [Appellee], and she
replied that he was her brother.
After about an hour, Boylan went upstairs with the girls. Bouvia
admitted [Appellee] was her boyfriend, not her brother, and
after that admission Boylan ceased talking to her. Boylan and
Hirst–Hermans exchanged words with [Appellee] during the
party. Boylan went back downstairs to visit with three or four
friends in the kitchen. At least twenty minutes after he first saw
[Appellee], Hirst–Hermans overheard him tell Bouvia that Boylan
was a “douchebag.” Hirst–Hermans told [Appellee] to shut up.
Choi and Hirst–Hermans observed [Appellee] by the door,
muttering angrily. Seeing Hirst–Hermans was uneasy, Choi
asked whether he wanted Choi to say something to [Appellee].
Choi then approached [Appellee] and they argued; Choi threw
the first punch, hitting [Appellee] in the face, and [Appellee]
fought back. The fight escalated to wrestling on the ground, and
when Hirst–Hermans attempted to drag Choi away from
[Appellee,] he was pulled down as well. [Appellee] punched
Hirst–Hermans in the back as Hirst–Hermans held him in a bear
hug. The fight lasted about fifteen seconds before other party
guests broke it up.
[Appellee] was then asked to leave, and Boylan and his friends
returned to the party. . . .
It was approximately 2:00 a.m. by the time Hirst–Hermans and
Boylan left the house, walking up 17th Street towards Edgley
Street. [Appellee] approached from around the corner, walking
in a circle around them, and the three men came to a stop in the
intersection. [Appellee] yelled, “You little fucking pussy; you
don’t want to fuck with me, you fucked with the wrong dude.”
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Hirst–Hermans exchanged “trash talk” with [Appellee] before he
stopped and asked, “What are you doing, what’s going on?”
[Appellee] came to a halt about four or five feet in front of the
two men, pointing a gun at Hirst–Hermans. Hirst–Hermans
asked, with his arms held down by his thighs, “Are you going to
shoot me?” [Appellee] then fired a single shot at Hirst–Hermans’
chest.
Hirst–Hermans fell to the ground in the middle of the street,
vomiting and bleeding heavily from his mouth and the right side
of his chest. His eyes rolled up in his head and his face turned
white. Boylan, Jerome, Neil Tierney (“Tierney”) and Heron ran
to him and together turned Hirst–Hermans over. Boylan called
911 while Heron and Tierney pressed down upon Hirst–Hermans’
chest, trying futilely to stop the bleeding. [Appellee] remained
standing at the scene with the gun in his hand.
At around 2:00 a.m., Police Sergeant Miranda Cruz, responding
to an unrelated back-up call, was driving southbound on 17th
Street and noticed a large crowd of people gathered at 17th and
Edgley Streets. As she left her car to investigate, she saw
[Appellee] walking towards her with a black handgun, his arms
held straight out and pointing the gun at her chest. [Appellee]
told her that he had just shot a male, it was in self-defense, and
he had a license to carry. Sergeant Cruz ordered [Appellee] to
drop the gun but he did not comply, and so she called for
immediate assistance. [Appellee] still did not drop the gun,
though Sergeant Cruz ordered him to do so or she would shoot
him. The scene was chaotic with many witnesses yelling that
[Appellee] had shot Hirst–Hermans. By the time backup arrived,
Sergeant Cruz stood over [Appellee] pointing her gun at him,
with his own gun on the ground. Officers approached [Appellee]
and ordered him to put the gun down. . . .
Commonwealth v. Dodds, 287 EDA 2014, 2014 WL 10558255, *1-*2 (Pa.
Super. filed Nov. 25, 2014) (unpublished mem.) (citation omitted). The
case proceeded to a jury trial.
On the morning of July 11, 2013, which was the second day of trial,
and before the jury entered the courtroom, Appellee’s trial counsel
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requested a psychological exam, prompted by Appellee’s “not appropriate”
responses to questions. Id. at *4. Trial counsel stated, “based on
[Appellee’s] behavior the last several days I’m asking the court to order a
forthwith psych before we proceed any further with trial based on
information that I have and his behavior I’m questioning whether he is
competent to proceed at this point for trial.” N.T. Trial, 7/11/13, at 3.
The trial court asked trial counsel to detail his concerns without
“breaching confidentiality.” Id. Trial counsel responded:
Since he authorized me to give this information that I just
received this morning. He is currently under an involuntary
commit outpatient at Norristown and he’s under treatment there.
The paperwork that I received regarding the involuntary commit
indicates as of now he is really mentally disabled.[1] This is
again what he authorized me to reveal to you just now at the bar
of the court when I asked if I can share this information to the
court regarding his competency.
THE COURT: This is coming to your attention now?
[Trial counsel]: Yes, Judge. I knew he was outpatient but
there’s no information from my conversations with him which is
every week for the last several months and the family to suggest
that he would not be competent to stand trial.
THE COURT: When did they suggest that?
[Trial counsel]: They’ve never suggested that.
THE COURT: They’ve never suggested that?
____________________________________________
1 Trial counsel later clarified that the paperwork established Appellee was
“mentally disturbed.” N.T. Trial, 7/11/13, at 12.
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[Trial counsel]: I’ve had no discussions with the parents
regarding that issue, Judge.
THE COURT: Okay.
[Trial counsel]: But the paperwork that I received this morning I
would not be doing my job so I ask to have him evaluated. His
behavior and his response to questions are not appropriate.
THE COURT: Response to your questions you mean?
[Trial counsel]: Yes. During conversations, I can’t say what we
talked about. The point where I feel he should be evaluated
before we proceed further.
Id. at 3-5.2
In response to the trial court’s inquiry about how long Appellee had
been in outpatient treatment, trial counsel referred to the hospital
paperwork stating that as of June 19, 2013 (just under a month before
trial), there was a “notice of intent to file a petition for extended involuntary
treatment for up to ninety days for a 304[3] commit. Again it’s outpatient
again that’s why [Appellee’s] on the streets.” Id. at 5. The paperwork
stated that the hospital filed the petition to have Appellee committed and
that Appellee was being treated for post-traumatic stress, alcohol abuse, and
a third entry that was “cut off” on trial counsel’s copy of the paperwork. Id.
____________________________________________
2 The Dodds Court correctly noted that the “record is silent as to how
[Appellee’s] responses were inappropriate. Conversations between
[Appellee] and defense counsel were privileged.” Dodds, 2014 WL
10558255 at *4 n.4.
3 Section 304 of the Mental Health Procedures Act. 50 P.S. § 7304.
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at 6. The trial court acknowledged that a competency exam could be done
“right now.” Id.
The Commonwealth objected, finding it suspicious that trial counsel
“had no idea beforehand” about Appellee’s involuntary commitment less
than a month earlier. Id. at 8. The trial court questioned trial counsel, “If
competency was a concern of yours why wouldn’t you have brought it to this
court’s attention immediately . . . that’s my question to you.” Id. at 9.
Trial counsel responded as follows:
[Trial counsel]: My concern, Judge, is my contact with him has
been regarding scheduling. We’ve already prepared this case as
it is three years old. Scheduling in terms of having this witness
here available on this case. It’s been by e-mail and by e-mail
phone message. So given the age of the case he was not in my
office. He was not -- was never a face to face until we came to
court. And he has been behaviorally changing every day since
we started this case. There were communications between
yesterday at the end of court and this morning at 4:00 a.m. that
lead me to believe at this point I need ethically and
professionally to have him examined by a professional and if a
professional says he’s good to go then I’m good to go. I’m not
asking for a continuance. I want this case to be resolved to a
verdict. This guy never should have to do a trial.
Id. at 9-10.
After further discussion, the trial court considered “sending [Appellee]
down during the lunch hour for a competency test.” Id. at 11. After
another exchange, the trial court observed that Appellee’s “parents have
been here every day with him, at prior listings. I can’t believe they didn’t
bring this to your attention if clearly he’s mentally disabled.” Id. at 13. The
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trial court subsequently ordered a “forthwith mental competency” exam. Id.
at 14.
After an off-the-record discussion and an unknown period of time, the
trial court stated the following on the record:
The competency report was given orally to both counsel and
then to this court by phone through Dr. [Robert] Stanton and Dr.
Stanton indicated to the court via telephone that [Appellee] is
competent right now but that based on an indication from [trial
counsel] if necessary that [Appellee] should be evaluated daily
for competency unless [trial counsel] indicates that it’s not
necessary. That’s what Dr. Stanton revealed to the court. Do
either of you have any discussion, objection, any further
inquiries you would like to make at this time?
[Assistant District Attorney]: No, Your Honor.
[Trial counsel]: Your Honor, if the understanding is that the
court will entertain a reevaluation as time progresses throughout
the trial at this point I will agree to go forward without
requesting a hearing with Dr. Stanton testifying in front of Your
Honor. I do feel that there’s more to competency about who a
DA is, what a judge does, and what a jury does. It’s whether
you can effectively assist your attorney in your defense. At this
point given Dr. Stanton’s frank assessment that [Appellee] is
mentally ill I don’t necessarily feel I’m getting that right now. I
will revisit that as I see [Appellee] progresses throughout the
trial.
THE COURT: Very well. So for right now I’ll make a finding that
[Appellee] is competent to proceed to trial today or to continue
to trial today.
Id. at 14-16. The case then proceeded.
On the morning of the next day at trial, after an off-the-record
discussion, the following exchange transpired out of the jury’s presence:
[Trial counsel]: Your Honor, this morning I was here before
9:00. I had a conversation with [Appellee] that lasted about 15
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minutes. So I walked in about quarter after you were already
taking the list. I was talking to your staff and I would like
[Appellee] evaluated again and on Monday because Dr. Stanton
was very specific that he may be it’s a very fluid situation
competency. He said barely competent. Today he’s competent.
I don’t know how he’s going to be tomorrow. You can have a
psychotic episode. Based on my conversations with [Appellee]
today I feel he should be evaluated today and Monday to be
honest.
THE COURT: What’s your basis for that? It’s not my intent to
just evaluate him every single day without need. If you have a
legitimate basis for it, I’m not sure there’s a legitimate basis for
an evaluation today. I don’t have a problem doing it if it needs
to be done. I’ve seen mentally incompetent ill people, we all
have in our empirical experience but we’ve all seen that.
However, in this particular case it was nothing I don’t really see
anything that was manifested in open court. However, you went
down there in the evaluation and the verbal came back
competent with the caveat that it may need to be done again
and you would let the court know if you thought it was of a
concern. But I don’t expect that to mean I’m going to send him
down no matter what. You have to have a legitimate basis for
the request.
* * *
THE COURT: Not since the trial has begun. He had an evaluation
yesterday and we started around 1:30 so we ended the trial at
4:15. Exactly 4:15 yesterday afternoon until today which is less
than 24 hours what have you observed that’s or I don’t know
how long you spent with him yesterday between yesterday and
today what’s happened in that short period of time that’s caused
you to have concerns about his competency at this point. That’s
the only gap of time that I’m concerned with.
[Trial counsel]: Does he know what a judge is? Yes. Does he
know what a DA is and defense attorney is? Yes. Does he know
what a jury is, yes. Does he answer questions in an appropriate
manner that he feels is on his own? No. Is he making decisions
on his own, I don’t believe he is right now so how can he make a
decision about whether he should testify or not.
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THE COURT: What do you mean answer questions or not, do you
have an example of that.
[Trial counsel]: Obviously I can’t talk about our conversations.
But the DA was in the room and what was talked about in the
room is not confidential. It was clear in speaking to him that he
has a severe mental disability. The doctor acknowledged he
could have a psychotic episode at any day. So when I’m
speaking with him the responses I get I can’t tell you what we’re
talking about, Judge, they make me feel he is not capable of
making a decision for himself, important decisions like should I
testify. That to me is just as much if not more of a competency
issue than if he knows who a judge is. Of course he knows what
a judge is. I mean he’s not ignorant. He’s mentally disable[d]. In
this case we have something that’s an involuntary commit for
the next ninety days. I didn’t know about it until the trial but one
doctor has him at Norristown state hospital. He’s been
committed two weeks.
THE COURT: As far as I’m concerned that’s of no moment. I
have a finding yesterday of him being competent so like I said
my only concern is what’s happened since 4:15 yesterday and
this morning that has you changing your mind. His answers
different or is he giving you different responses now than what
he gave you yesterday is that the change, has there a change or
is that the same thing that you’ve had all along, that’s my
question.
[Trial counsel]: Judge, yesterday --
THE COURT: No, answer my question. Are his answers or his
responses the same as they were before the evaluation or is he
giving a different response now?
[Trial counsel]: He’s still giving answers that are not appropriate
and I don’t feel that he can give a response in making his own
decision.
THE COURT: Is that the same?
[Trial counsel]: Yes.
THE COURT: Nothing that’s different. Anything from the
Commonwealth?
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[Assistant District Attorney]: Your Honor, I did sit in on the
evaluation also and agree with the doctor that he’s competent
yet does he have mental health issues, sure, but way different
than someone being competent. Your Honor, in this case . . . it’s
not the defense case yet so if there’s greater concerns next week
and something changes then before it becomes the defense case
--
[Trial counsel]: Judge, I will advise the court I intend on one day
I will litigate a motion to challenge Dr. Stanton’s findings.
THE COURT: The motion is denied.
[Trial counsel]: I object to the court[’]s ruling. . . . On my
motion to have him evaluated I would like it noted for the record
it’s now 11:05 and we’re just [bringing in] the jury[.] [Appellee]
and I have been here since 9:00 ready to have him evaluated.
[Appellee] when he met Dr. Stanton yesterday was instructed to
take his medication to alleviate symptoms he might have had.
He has done that. As a result he is drowsy to the point of falling
asleep. I’ve had several conversations with him where he drifted
off. There may be situations where I may ask the court for an
unexpectedly or without notice of a comfort break so that he’ll
need to walk around or eat something or he might not be able to
stay awake.
THE COURT: Very well.
* * *
[Trial counsel]: I’m not stipulated [sic] that [Appellee] is
competent, Judge.
[THE COURT]: I understand that. . . .
N.T. Trial, 7/12/13, at 3-8.4
____________________________________________
4 Subsequently, Appellee “elected not to testify on his own behalf.” Dodds,
2014 WL 10558255 at *4. Trial counsel and the trial court gave a colloquy
to Appellee. Id.; see N.T. Trial, 7/13/13, at 141-48. The trial court
(Footnote Continued Next Page)
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A jury convicted Appellee of aggravated assault and possession of an
instrument of crime. Dodds, 2014 WL 10558255 at *3. Following a pre-
sentence investigation and mental health report, the trial court sentenced
Appellee to ten to twenty years’ imprisonment. Id.
Appellee timely appealed to this Court and challenged, among other
issues, whether the trial court abused its discretion by refusing to grant the
mid-trial request by Appellee’s trial counsel for a second psychological exam.
Id. The Dodds Court held that Appellee failed to “establish that [he] did not
understand the nature of the proceedings against him or that he was unable
to assist in his own defense.”5 Id. at *4. Appellee did not file a petition for
allowance of appeal with our Supreme Court.
(Footnote Continued) _______________________
concluded it was satisfied Appellee “made a knowing, intelligent waiver of his
right to testify . . . .” N.T. Trial, 7/13/13, at 146. The jury retired to
deliberate and, in relevant part, asked the trial court if it could consider
Appellee’s courtroom demeanor. N.T. Trial, 7/17/13, at 2. Appellee’s trial
counsel argued that the jury should not consider Appellee’s demeanor
because on the second day of trial, Appellee was “very medicated to the
point he could barely keep his eyes open.” Id. at 3. After hearing the
Commonwealth’s argument, the trial court instructed the jury that it must
disregard Appellee’s demeanor and base its verdict only on the evidence.
Id. at 4.
5 In the direct appeal, this Court reasoned as follows: “On the second day,
the trial court granted [Appellee] the opportunity to show that circumstances
had changed overnight, such that he no longer was competent to stand trial.
[Appellee’s] counsel ventured nothing but vague and conclusory allusions to
inappropriate answers to questions in their private discussion.” Dodds,
2014 WL 10558255 at *4. The Dodds Court continued: “Furthermore,
[Appellee] did not request a reevaluation in the days that followed. Later in
the trial, [Appellee] knowingly and intelligently declined to testify on his own
(Footnote Continued Next Page)
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On June 9, 2015, Appellee filed a counseled PCRA petition, which
alleged trial counsel “was ineffective for failing to timely investigate
[Appellee’s] competency to stand trial.” PCRA Pet., 6/9/15, at ¶¶ 21, 29
(emphasis added). PCRA counsel claimed that Appellee “had a severe
history of mental illness” that Appellee’s trial “counsel did not discover[]
until the second day of trial.” Id. at ¶ 22. PCRA counsel also noted that
trial counsel “admitted that he did not meet with [Appellee] in person until
the time of trial but only communicated by email or telephone.” Id. In
PCRA counsel’s view, “it is reasonable trial practice to meet with a client in
person prior to trial to assess his or her credibility especially in light of the
fact that counsel was considering a justification defense where the client
might testify.” Id. PCRA counsel concluded that trial counsel’s “failure to do
so” prejudiced Appellee because Appellee “could not meaningfully participate
in his defense.” Id. at ¶ 25.
The Commonwealth filed a motion to dismiss, and the PCRA court held
an evidentiary hearing on May 23, 2016. We state the PCRA court’s
findings, as set forth in its Pa.R.A.P. 1925(a) opinion:
(Footnote Continued) _______________________
behalf, and the record does not indicate that his behavior changed after he
first was deemed competent to stand trial.” Id. The Court concluded,
“[t]his limited record is insufficient to establish that [Appellee] did not
understand the nature of the proceedings against him or that he was unable
to assist in his own defense.” Id. The Dodds Court also denied relief on
Appellee’s remaining challenge to the discretionary aspects of his sentence.
Id. at *6.
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Christopher Phillips, Appellee’s trial counsel, was called by the
defense. From the beginning of trial preparation and meetings
with Appellee, Appellee’s family, and other witnesses, Phillips
had always intended to argue that Appellee acted in self-
defense. Phillips hoped to present Appellee’s testimony at trial
in support of that defense, as his state of mind was critical.
From November to May, 2013, Phillips was involved in a federal
jury trial and though he communicated with Appellee regularly,
they did not meet face-to-face from approximately May 2013
until the date of trial. In May or June, 2013, Phillips received a
phone call from Appellee regarding a confrontation at a
playground. Appellee seemed very agitated, which Phillips felt
was out of character. Consequently, Philips called Appellee’s
father, who reassured Phillips that Appellee was “fine . . . he was
stressed because the trial was coming imminent and . . . he was
okay.” Based upon this conversation and previous interactions
with Appellee, Phillips assumed the agitation was an “isolated
incident.” Phillips alleges that during a phone call with Appellee
two (2) weeks before the trial, he did not know Appellee was
experiencing any mental health issues; he seemed as “normal”
as he had in previous meetings. Prior to trial, in conversations
with Appellee’s family, Phillips alleges that there was no
indication he was not competent to stand trial. Additionally,
Appellee’s family did inform Phillips he was attending outpatient
therapy.
On the first day of jury selection, July 9, 2013, Phillips noted
Appellee seemed a little nervous but was able to assist Phillips in
picking a jury. On July 10, 2013, Appellee seemed “sleepy.” On
July 11, 2013, Phillips noticed Appellee was “not as alert” as he
had seemed on the first day. Phillips met with Appellee and his
family, at which time Appellee’s family informed Phillips for the
first time, according to his testimony, that Appellee had been
recently involuntarily committed at Montgomery County
Emergency Services [approximately one month before trial].
Records provided showed a diagnosis of post-traumatic stress
disorder and alcohol dependency. Phillips testified at this time
that Appellee’s parents apologized to Phillips for not bringing the
matter to his attention, and explained they were concerned
Appellee would not be able to “handle” further delay of the trial.
Although Phillips felt Appellee met the legal definition of
competency, he requested a forthwith psych evaluation.
Appellee was evaluated by the court psychiatrist, Dr. Stanton,
and found competent to stand trial. Based upon conversations
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with Dr. Stanton, Phillips requested a competency evaluation the
following day, a request this court denied, then made an oral
motion to challenge Stanton’s findings, which was also denied.
During the trial, Phillips observed a positive improvement in
Appellee’s demeanor as his medication allowed him to sleep. In
Phillips’ opinion, although Appellee was legally competent, he
was not able to assist in his own defense through testimony or
cross examination. Additionally, Phillips was concerned with
Appellee’s demeanor during trial, as he “came off like he had
some sort of mental health issue.” After the Commonwealth
rested its case and Appellee’s witness, Shannon Bouvia, had
testified regarding the events at the party, Phillips discussed
again with Appellee’s family whether he wished to testify and
[could] effectively answer questions on cross-examination, and
explained the potential risk of testifying. Phillips would have
preferred to have Appellee’s testimony on the record, and had
[Appellee] been “similar to where he was before the trial,”
Phillips would have recommended Appellee testify. Ultimately,
Phillips allows his clients to choose whether they will testify or
not, but ultimately advised Appellee against testifying in his own
defense.
Phillips did not believe he had the legal grounds for a mistrial, as
the jury had not heard or seen anything that would prejudice
them. He stated that though he believed Appellee had a
competency issue, that issue had been addressed by the judge
and court psychiatrist, over his objections, and the case was
proceeding regardless and Phillips did not know how much time
would be needed, so he did not ask for a continuance. Phillips
believed that Appellee was capable of making a rational decision
not to testify.
Richard Dodds, Appellee’s father, testified at the hearing. Dodds
testified that Phillips only met with Appellee in person only two
(2) times prior to trial in which counsel and Appellee had any
significant conversation regarding trial, the last time being
sometime in July, 2012, although he later admitted that Phillips
saw him “several times,” including at the courthouse. Dodds
testified that these other meetings were simply for Appellee to
provide his signature, and at those meetings Appellee would
simply provide his signature and leave. Dodds testified that
during the two and a half year pendency from arrest to trial,
Appellee began to have trouble sleeping and “becoming
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psychotic.” Appellee began behaving oddly, approaching middle
school kids to talk to them about the dangers of gun violence
and making statements that made no sense, such as that his
boss had died, or that the mafia was trying to kill his boss.
Dodds and his wife took Appellee to the family doctor to get him
medication to help him sleep. On June 6, 2013, Dodds and his
wife took Appellee to Einstein Hospital in Norristown, resulting in
Appellee’s involuntary commitment until June 21, 2013. After
Appellee was released from the inpatient program, he took pills
that made him “like a zombie . . . he wasn’t even like the same
person.” Dodds testified, under oath, that he contacted Phillips
by telephone and informed him of the involuntary commitment.
Dodds testified that from the period of his son’s release from
involuntary commitment until the start of trial, Phillips did not
contact Appellee in person or otherwise. Dodds stated he tried
to give the hospital paperwork to Phillips, but could not get it
“until the last minute.” Dodds testified that he and his wife
wished to get the trial “over with” as it had been delayed so
long.
Dodds testified Appellee was a “zombie” and a “basket case”
during the trial. Dodds testified that during the meeting with
Phillips, he and his wife felt Appellee would do himself “more
harm” by testifying, as they were afraid Appellee would “break
down.” [According to Dodds,] Appellee stated he wished to
testify, and Dodds and his wife told him not to testify, partially
based upon Phillips’ advice. Dodds testified that during the
colloquy regarding Appellee’s decision not to testify, his son was
“not in his right mind.”
Nancy Dodds, Appellee’s mother, also testified at the evidentiary
hearing. She testified that she accompanied her son at least
once to Phillips’ office. She stated that on June 6, 2013,
Appellee was acting very agitated all day, unable to sit still or
sleep, and was not “acting right.” She stated that Appellee
talked to some children at a local middle school about gun
violence, and that the police came to their home because some
of the parents had called with concerns. The police then took
Appellee to the hospital to have him evaluated, and he was
admitted, and remained in the hospital for two weeks. She
stated that Phillips did not see Appellee while he was in the
hospital, nor at home after he was released, and that she knew
her husband called Phillips to tell him about the commitment.
She testified that they gave Phillips Appellee’s discharge papers
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after jury selection because Phillips never asked for them, and
that, therefore, led them to believe that the papers were
unimportant. She stated it was determined Appellee would not
testify because of his mental state.
PCRA Ct. Op., 1/22/19, at 7-11 (citations and footnote omitted). Appellee
did not testify at the PCRA hearing, which as noted above, occurred on May
23, 2016.
Almost two years later, on January 12, 2018, the PCRA court issued an
opinion preliminarily denying Appellee’s petition but did not issue a formal
order denying Appellee’s petition.6 On April 16, 2018, the docket states
“PCRA Decision Held Under Advisement.”7
____________________________________________
6 The docket entry for January 12, 2018 includes a notation from the trial
court that it would issue a new opinion if Appellee filed a notice of appeal.
See Secure Docket, 1/12/18. We note that the PCRA court’s January 12,
2018 opinion states that it denied Appellee’s petition on September 29,
2016. The public docket for September 29, 2016, reflects “entry of civil
judgment,” but there is no corresponding document in the certified record
transmitted to this Court. A copy of the secure docket included in the
reproduced record reflects “entry of civil judgment” on September 29, 2016,
with no further details. A copy of the appeal inventory transmitted to this
Court as part of the certified record states the following for September 29,
2016: “PCRA Continued Case to be held under advisement Next court date
to be determined Defendant in custody.” There is no order dated September
29, 2016, in the certified record transmitted to this Court. We add that the
PCRA court’s January 12, 2018 opinion is framed as a Pa.R.A.P. 1925(a)
decision, although Appellee could not have appealed.
7 On that date, the PCRA court held a brief hearing, at which the court
announced:
THE COURT: So, I have this ruling filed based on the PCRA that
was filed, the evidentiary hearing, and the response from the
Commonwealth.
(Footnote Continued Next Page)
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The PCRA court then scheduled another hearing for June 27, 2018, at
which the PCRA court granted relief.8 The secure docket entry for June 27,
(Footnote Continued) _______________________
This court still has jurisdiction of [sic] it. I am going to hold it
under advisement a little longer before I do anything.
N.T. PCRA Hr’g, 4/16/18, at 3. It appears that the PCRA court was
referencing the Commonwealth’s motion to dismiss. The certified record
transmitted to this Court did not include this transcript, among others.
Because the Commonwealth included the omitted transcripts in its
reproduced record and no party has objected to their accuracy, this Court
will consider them. See generally Pa.R.A.P. 1921 cmt. (citing
Commonwealth v. Brown, 52 A.3d 1139, 1445 n.4 (Pa. 2012)). We
remind the parties that they “have a duty to take steps necessary to assure
that the appellate court has a complete record on appeal . . . . Ultimate
responsibility for a complete record rests with the party raising an issue” on
appeal. Id.
8 The PCRA court, at the beginning of the hearing, announced as follows:
THE COURT: Good morning. This matter had been listed a
number of times and I think part of it was based on my
reconsideration of all the arguments.
And based on all of the arguments that I have heard thus far
and despite what I filed already, which was premature, I
understand that, but I am granting the new trial. I think that is
the right thing to do.
N.T. PCRA Hr’g, 6/27/18, at 3. Following brief argument by the
Commonwealth and Appellee’s PCRA counsel, the hearing concluded. Id. at
8.
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2018, states in pertinent part, “PCRA Granted-New Trial is Granted.”9
Secure Docket, 6/27/18. The Commonwealth timely appealed.
On November 9, 2018, the PCRA court ordered the Commonwealth to
comply with Pa.R.A.P. 1925(b). The secure docket reflects entry of the
November 9, 2018 order, but does not specifically state “the date of service
of the order.” See Pa.R.Crim.P. 114(C)(2)(c). On December 6, 2018, the
Commonwealth filed a petition to accept its Rule 1925(b) statement as
timely filed because it lacked notice and also filed its Rule 1925(b)
statement. The PCRA court did not rule on the Commonwealth’s petition.
The PCRA court filed a responsive Rule 1925(a) opinion that asserted that
this Court should dismiss the Commonwealth’s appeal because it failed to
timely file a Rule 1925(b) statement but also addressed the merits.
Untimely Rule 1925(b) Statement
Initially, we resolve the Commonwealth’s contention that this Court
should not dismiss its appeal because it filed its Rule 1925(b) statement six
days late. Commonwealth’s Brief at 51. The interpretation of the
Pennsylvania Rules of Appellate Procedure is a question of law, and thus the
“standard of review is de novo and our scope of review is plenary.” See
____________________________________________
9The certified record transmitted to this Court does not include a separate
document memorializing the PCRA court’s oral order. See generally
Brandschain v. Lieberman, 466 A.2d 1035, 1036 n.1 (Pa. Super. 1983).
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Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 32 A.3d
800, 808 (Pa. Super. 2011) (en banc).
The Commonwealth argues that there was a breakdown in court
operations because it failed to receive notice of the PCRA court’s Rule
1925(b) order. Commonwealth’s Brief at 52. The Commonwealth contends
that “it discovered the existence of the [Rule 1925(b)] order only when
conducted a periodic audit of the dockets of pending Commonwealth appeals
on December 5, 2018.” Id. The Commonwealth states that it “promptly
filed” its Rule 1925(b) statement the next day, along with a “petition
explaining its lack of notice of the order and its request that the PCRA court
treat the petition as timely filed.” Id. The Commonwealth notes that the
PCRA court did not rule on the petition and did not mention the petition in its
Rule 1925(a) opinion. Id. Alternatively, the Commonwealth argues that
because the PCRA court prepared a Rule 1925(a) opinion addressing the
issues, we may consider the appeal. Id. at 53 (citing, inter alia,
Commonwealth v. Grohowski, 980 A.2d 113 (Pa. Super. 2009)).10
____________________________________________
10 Appellee counters that Rule 1925(b) is a bright-line rule that must be
strictly construed. Appellee’s Brief at 10-11. Appellee does not directly
contradict the Commonwealth’s assertion of a breakdown in court
operations, but notes that the Commonwealth “had never extended nunc pro
tunc courtesy to opposing counsel.” Id. at 11. In its Rule 1925(a) opinion,
the PCRA court notes that the Commonwealth’s appeal should be dismissed
because it failed to timely file a court-ordered Rule 1925(b) statement.
PCRA Ct. Op. at 11. The PCRA court states that the Commonwealth never
requested an extension of time, but does not discuss the Commonwealth’s
(Footnote Continued Next Page)
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In Grohowski, the Commonwealth appealed, and Appellee cross-
appealed, and both filed untimely court-ordered Rule 1925(b) statements.11
Grohowski, 980 A.2d at 114. In resolving whether to accept the
Commonwealth’s untimely Rule 1925(b) statement, the Grohowski Court
observed as follows:
Rule 1925(c)(3)[12] allows for remand “if an appellant” in a
criminal case was ordered to file a statement and did not do so.
There is no requirement set forth in the Rule that the appealing
party must be the defendant in order to apply the Rule.
Furthermore, we refuse to read such a requirement into the
Rule. Fairness and consistency require that each side be treated
the same so that if we are to permit the late filing of the 1925(b)
statement for one of the parties, i.e., the Defendant, we must
permit the late filing of the 1925(b) statement for the other side,
i.e., the Commonwealth.
(Footnote Continued) _______________________
petition to accept its Rule 1925(b) statement as untimely because the
Commonwealth lacked notice. Id. at 11-12.
11 In Grohowski, the defendant was convicted of narcotics offenses.
Grohowski, 980 A.2d at 114. Before he was sentenced, the defendant
filed, and the trial court granted, a motion for extraordinary relief requesting
a new trial. Id.
12 Rule 1925(c)(3) provides as follows:
If an appellant represented by counsel in a criminal case was
ordered to file a Statement and failed to do so or filed an
untimely Statement, such that the appellate court is convinced
that counsel has been per se ineffective, and the trial court did
not file an opinion, the appellate court may remand for
appointment of new counsel, the filing of a Statement nunc pro
tunc, and the preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3).
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Id. at 115 (emphasis added). Based on this reasoning, the Grohowski
Court permitted “the late filing of a 1925(b) statement” by the
Commonwealth. Id.
Turning to the instant case, the Commonwealth similarly filed an
untimely Rule 1925(b) statement. See id. We need not address whether
the Commonwealth lacked notice of the PCRA court’s Rule 1925(b) order.
Because this Court has permitted the late filing of Rule 1925(b) statements
by counseled defendants, we must also permit the Commonwealth’s late
filing of its Rule 1925(b) statement, particularly since the PCRA court
addressed the merits in its Rule 1925(a) opinion. See id. Accordingly, we
decline the PCRA court’s and Appellee’s request that we dismiss the
Commonwealth’s appeal. See id.
Commonwealth’s Appeal
We now turn to the Commonwealth’s sole issue on appeal:
Did the PCRA court err in granting a new trial absent any
showing of deficient representation by trial counsel or prejudice,
where, among other factors precluding relief, the record refuted
[Appellee’s] allegations that counsel failed to investigate
[Appellee’s] mental health before trial, where [Appellee] and his
family had opposed any delay of the trial and concealed his
mental health issues for that reason, and where he was found
competent to stand trial and was thus unentitled to a
continuance in any event?
Commonwealth’s Brief at 4.
We summarize the Commonwealth’s third argument in support of its
sole issue, which raises seven reasons why Appellee failed to establish trial
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counsel’s ineffectiveness. Id. at 36. The Commonwealth’s sixth reason is
that Appellee could not establish prejudice because (1) the trial court was
not willing to continue the trial unless Appellee was incompetent, (2)
Appellee and his family were opposed to any delay of trial, and (3) Appellee
failed to testify at the PCRA hearing. Id. at 45-48.
In relevant part, Appellee counters that trial counsel’s failure to timely
investigate his mental competency caused prejudice. Appellee’s Brief at 15.
First, Appellee argues he “could not meaningfully participate in his defense.”
Id. at 15. Appellee asserts that trial counsel admitted on the record that he
“could not reveal the exact problem” because of privilege but testified he
“had significant cognitive problems which prevented him from his meaningful
participation in his case.” Id. In support, Appellee quotes from trial
counsel’s testimony at the PCRA hearing:
[PCRA counsel]. But the fundamental, this is what I’m trying to
get to, [trial counsel], was that it was your intention all along to
present him and you waited until the very end. But was it his
mental condition and the way he was carrying himself and
whatnot that made the decision for you, or at least your
recommendation to him, because he was, in your opinion,
because of his condition unable to be an effective witness?
[Trial counsel]. If he had improved to the point where he was
similar to where he was before the trial, I would have called him
to the stand. I would have recommended that he testified.
Id. at 16 (quoting N.T. PCRA Hr’g, 5/23/16, at 34-35).
Second, because Appellee was not competent, Appellee argues he
could not have knowingly waived his right to testify. Id. Appellee highlights
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that trial counsel “did not even colloquy” him about his mental illness or
whether he was taking medication, which in Appellee’s view, establishes trial
counsel’s “lack of knowledge regarding the significance of his ability and
necessity of his testimony.” Id. at 17.
The PCRA court’s January 22, 2019 Rule 1925(b) opinion reasoned as
follows in granting relief to Appellee:
Although much of the argument and testimony at the evidentiary
hearing revolved around Appellee’s competency to stand trial,
Appellee contends in the instant PCRA that Appellee’s trial
counsel was ineffective for a failure to conduct an adequate
investigation, and that Appellee was prejudiced as a result.
Appellee avers that had trial counsel conducted more face-to-
face meetings prior to trial, interviewed Appellee’s parents, or
worked to obtain documents related to Appellee’s mental state,
counsel would have been aware of his deteriorating mental state
and thus could have requested a continuance prior to trial. This
Court agrees with such contention.
PCRA Ct. Op., 1/22/19, at 13. The PCRA court noted that “in the period
between Appellee’s release from involuntary commitment leading up to the
trial, [trial counsel] never contacted Appellee during this critical period . . .
.”13 Id. at 14. The PCRA court concluded that Appellee’s ineffectiveness
____________________________________________
13 The PCRA court pointed out that Appellee’s father “called [trial] counsel to
inform him of the commitment the week that the commitment occurred,”
and Appellee’s mother corroborated the call. PCRA Ct. Op. at 14. In the
PCRA court’s view, upon receiving that call, trial counsel should have, but
“failed to conduct the necessary pre-trial investigation.” Id. “Despite this,
[trial] counsel testified that his first knowledge of Appellee’s commitment
came on the second day of trial.” Id. The PCRA court did not expressly
address the credibility of trial counsel’s testimony.
(Footnote Continued Next Page)
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claim had arguable merit, trial counsel had no reasonable basis for his
inaction, and summarily reasoned that but for trial counsel’s error, there was
a reasonable probability of a different outcome:
Moreover, Appellee was prejudiced by counsel’s failure to
adequately investigate Appellee’s mental state in the month
leading up to the trial. Prejudice in a PCRA petition, under a
claim of ineffective assistance of counsel requires a showing that
there exists a reasonable probability that but for counsel’s errors
the result of the proceeding would have been different.
Commonwealth v. Mallory, 941 A.2d 686, 699 (Pa. 2008). A
claim of self-defense requires a criminal defendant to show “(a)
[that the defendant] reasonably believed that he was in
imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such
harm; (b) that the defendant was free from fault in provoking
the difficulty which culminated in the slaying; and (c) that the
[defendant] did not violate any duty to retreat.”
Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012). The
most critical witness that would allow the jury to properly
(Footnote Continued) _______________________
The PCRA court agreed with Appellee’s contention that “a continuance should
have been requested in order to either reevaluate his defense strategy, or to
allow Appellee to stabilize.” Id. Although trial counsel questioned Appellee’s
father as to whether Appellee could stand trial, the PCRA court held “this is
simply not enough,” given that Appellee’s claim of self-defense would require
“the jury to determine Appellee’s state of mind . . . .” Id. The PCRA court
opined that trial counsel “should have interviewed Appellee and [his]
parents, and worked to obtain proof of Appellee’s deteriorating mental
health . . . .” Id. The PCRA court maintained that trial counsel’s “lack of
investigation” severely hampered counsel’s options. Id. “An adequate
investigation,” the PCRA court reasoned, “could have given [trial] counsel an
ability to reevaluate his planned defense, and potentially present a different
defense.” Id. The PCRA court stated that “earlier in person contact” from
trial counsel would have led to the discovery of Appellee’s mental state “at a
time when counsel could have addressed [that] mental state more
appropriately.” Id. at 15. The PCRA court faults trial counsel for not being
in greater contact with Appellee. Id.
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evaluate whether the defendant reasonably believed that he or
she was in reasonable danger is the defendant him or herself.
Id. at 15-16.
The standard of review for an order granting a PCRA petition is well-
settled:
When reviewing an order granting PCRA relief, we must
determine whether the decision of the PCRA court is supported
by the evidence of record and is free of legal error. Moreover,
we will not disturb the findings of the PCRA court unless those
findings have no support in the certified record.
Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa. Super. 2017) (en banc)
(citations omitted and formatting altered).
It is well-settled that to establish a claim of ineffective assistance of
counsel, a defendant “must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of the particular
case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Commonwealth
v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The
burden is on the defendant to prove all three of the following prongs: “(1)
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that the outcome
of the proceedings would have been different.” Id. (citation omitted).
Framed differently, a “reasonable probability is a probability sufficient to
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undermine confidence in the outcome.” Commonwealth v. Johnson, 139
A.3d 1257, 1284 (Pa. 2016) (citation omitted).
In Commonwealth v. Puskar, 951 A.2d 267 (Pa. 2008), the
defendant argued that trial counsel was ineffective for not conducting “an
adequate investigation into potential mitigating evidence . . . .” Puskar,
951 A.2d at 284. As a result, the defendant claimed his waiver of the
presentation of mitigating evidence at the penalty phase was not knowing
and voluntary. Id. at 289-90. The Commonwealth argued, inter alia, that
the defendant never testified at the PCRA hearing, and therefore, “did not
attempt to prove that the outcome of the waiver would have been different if
only counsel” had presented the defendant with mitigating evidence. Id. at
290.
In affirming the denial of PCRA relief, the Puskar Court reasoned,
among other things, that the defendant
did not testify at the PCRA hearing and thus he did not attempt
to establish that, if only counsel had undertaken an investigation
of mitigation evidence, he would have relented and permitted
counsel to present a case in mitigation. In short, he has not
shown that the outcome of his waiver of mitigation would have
been different but for counsel’s inaction.
Id. at 292; see also Commonwealth v. Mitchell, 105 A.3d 1257, 1273
(Pa. 2014) (affirming denial of PCRA relief because the defendant, who did
not testify at the PCRA hearing, “presented no testimony or evidence at the
PCRA hearing indicating trial counsel advised [the defendant] that, if he pled
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guilty, absolutely no evidence of the sexual offenses would be presented to
the jury during the guilt or penalty phases.”).
Turning to the instant case, we focus on the prejudice prong, that is,
whether the instant PCRA court erred by holding that Appellee established
prejudice. See, e.g., Turetsky, 925 A.2d at 880. To briefly reiterate, as
set forth above, Appellee reasons trial counsel’s failure to timely investigate
prejudiced him for two reasons: (1) he “could not meaningfully participate in
his defense,” and (2) could not knowingly waive his right to testify.
Appellee’s Brief at 15-16.
Initially, we question whether a timely investigation of Appellee’s
mental competency would have resulted in the prejudice that Appellee sets
forth above. See Appellee’s Brief at 15-16. First, as the Dodds Court
stated on direct appeal, Appellee was deemed competent to stand trial on
the first day of trial, and he could not establish a subsequent change in
behavior such that he was not competent to stand trial. See Dodds, 2014
WL 10558255 at *4. Second, and similarly, the Dodds Court noted that
Appellee knowingly and intelligently waived his right to testify. See id. It
follows that if Appellee was competent to stand trial and waive his right to
testify, then a timely pretrial investigation into Appellee’s mental
competency would not establish the prejudice alleged by Appellee in the
instant appeal. See id.
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Moreover, as the PCRA court noted in its Rule 1925(a) opinion, a
month or two prior to trial, Appellee telephoned trial counsel in an agitated
state, which prompted trial counsel to contact Appellee’s Father. PCRA Ct.
Op. at 7. Appellee’s father assured trial counsel that Appellee was “fine” but
just “stressed” because of the upcoming trial. Id. Subsequently, two weeks
before trial, trial counsel spoke with Appellee and Appellee’s family and,
according to trial counsel, Appellee appeared “normal” and there was no
indication that Appellee was not competent. Id. Trial counsel’s affirmative
action also appears to undermine Appellee’s contention of an inadequate
timely investigation into Appellee’s competency. Id.
Additionally, identical to the defendant in Puskar, Appellee also failed
to testify at the PCRA hearing. See Puskar, 951 A.2d at 292. Appellee did
not present any testimony or evidence establishing a reasonable probability
that the outcome of the trial would have been different if counsel had timely
investigated his mental competency. See id. Like the defendant in
Mitchell, Appellee did not present any testimony or evidence at the PCRA
hearing that would have established a reasonable probability sufficient to
undermine confidence in the verdict. See Mitchell, 105 A.3d at 1273; see
Johnson, 139 A.3d at 1284. Indeed, although the PCRA court found
prejudice in a few perfunctory sentences, it completely failed to cite anything
of record supporting its prejudice analysis. See PCRA Ct. Op. at 15-16.
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While the PCRA court asserts that trial counsel’s earlier investigation
would have permitted trial counsel to investigate alternative defenses, the
PCRA court did not state what those defenses would be that could have led
to a different outcome. See PCRA Ct. Op. at 15-16. For these reasons,
because the PCRA court’s reasoning lacks any support in the certified record,
we reverse the order below. See Rivera, 154 A.3d at 377.14
Order reversed.
Judge McLaughlin joins the memorandum.
Judge Lazarus files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/20
____________________________________________
14In light of our disposition, we do not have to address the Commonwealth’s
remaining arguments. Cf. Commonwealth v. Merchant, 595 A.2d 1135,
1139 (Pa. 1991) (holding that when reversing on one issue, there is no
reason to address the remaining issues); In re D.A., 801 A.2d 614, 618
(Pa. Super. 2002) (same).
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