Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

SAHEED 0. SAUNDERS

Appellant No. EDA 2016 Appeal from the Order December 21, 2015 In the Court of Common Pleas Philadelphia County Criminal Division at No(s): CP-51-CR-0009795-2008

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD*, J. FILED APRIL 06, 2017

MEMORANDUM BY PANELLA, J.

Appellant, Saheed Saunders, appeals pro se from the order entered the Court of Common Pleas of Philadelphia County, denying petition pursuant Post Conviciton Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We vacate remand evidentiary hearing.

We assume parties' familiarity with the facts underlying Saunders's convictions. We direct the interested reader trial court's opinion. See Trial Court Opinion, at 2-4. After this Court affirmed convictions, see Saunders, No. EDA Super., filed July 2014) (unpublished memorandum) (affirming based on * Former Justice specially assigned the Superior Court.

the trial court's opinion), Saunders filed timely pro se PCRA petition. The petition alleged, among other claims, the assistance of trial counsel.

The PCRA court appointed counsel who subsequently filed "no -merit" letter and petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 Super. 1988) (en banc). court issued 907 notice. Saunders filed two responses, but the granted counsel's petition withdraw and dismissed the without hearing. This timely appeal followed.'

"On appeal from the denial of relief, our standard scope of review is limited determining whether court's findings are supported record without legal error." v. Edmiston, A.3d 339, (Pa. (citation omitted).

In pro se Saunders alleged ineffective assistance failing to call alibi witness, Sherry Lockett. As described below, Saunders is entitled hearing on claim.

' appeal had filed January 20, 2016. Pa.R.A.P. 903(a). is incarcerated, SCI Greene, the Commonwealth's only supermax prison, filed appeal pro se. His notice appeal is dated January postmark the envelope attached the notice appeal is dated January "Pursuant the prisoner mailbox rule, we deem document the day placed hands prison authorities for mailing." Patterson, A.2d 710, 714 2007). This appeal timely.

To entitled relief under the PCRA, petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated § 9543(a)(2) the PCRA. One such error involves the ineffective assistance of counsel. The law presumes counsel's effectiveness; petitioner's burden to prove the contrary. See Commonwealth Payne, 794 A.2d 902, 906 (Pa. Super. 2002).

To obtain relief under the premised claim that counsel was ineffective, petitioner must establish preponderance of the evidence that ineffectiveness so undermined the truth -determining process that no reliable adjudication guilt or innocence could have taken place. See 42 Pa.C.S.A. § 9543(a)(2)(ii). This requires the petitioner plead and prove that: (1) the underlying of arguable merit; (2) had no reasonable strategic basis or her action or inaction; (3) petitioner was prejudiced counsel's act or omission. v. Stewart, A.3d 706 (Pa. Super. 2013) (en banc). Failure prove any one of these three elements causes claim to fail. See id.

"Where a[n appellant] claims failing to call particular witness, we require proof witness's availability testify, well adequate assertion the substance of the purported testimony would make difference case." v. Michaud, A.3d (citation omitted; brackets in original). See also 42 Pa.C.S.A. § 9545(d)(1). A PCRA petitioner must demonstrate following:

(1) the witness existed; (2) the witness was available; (3) trial was informed of the existence of the witness or should have known of the witness's existence; (4) the witness was prepared to cooperate and would have testified appellant's behalf; (5) absence testimony prejudiced appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. (citation omitted).

Saunders provided a signed certification as required by § 9545(d)(1).2 Specifically, he alleged Lockett "would could have testified" his "whereabouts" would have placed him away from the commission of the crime. Petition, filed 2/23/15, at § Simply put, she would have provided him with an alibi. construed as a was precluded what transpired at trial. There, counsel, David Rudenstein, Esquire, claims "defendant made no offer prove

claim, whether affidavit or otherwise," nor did "offer certification from himself, counsel, or Sherry Lockett." Commonwealth's Brief, at 9. not required to file an affidavit. "Where petitioner requests an evidentiary hearing, the shall include signed certification each intended witness stating the witness's name, address, date of birth and substance of testimony shall include any documents material witness's testimony." Pa.C.S.A. § 9545(d)(1) (emphasis added). See also Brown, 767 A.2d 576, 583 2001) (stating § 9545(d)(1) requires "signed certification" from potential witness, not affidavit). Saunders provided signed certification PCRA complying with § 9545(d)(1). Petition, 6 §

stated that for "strategic reasons" he was not going to present Lockett as a witness because she "has not been all that cooperative...." N.T., Trial, 3/7/13, at 162-163. The trial court inquired of Saunders, "[d]id you listen your lawyer talking [do] you agree with what said, sir?" Id., at And Saunders responded, "[y]es." Id. The trial court asked Saunders further, "[s]o you don't believe that there any necessity at this time call any witnesses?" Id. And Saunders responded, "[n]o." Id.

Relying on legal precept that "a defendant who makes knowing, voluntary, intelligent decision concerning trial strategy will not later be heard complain that trial counsel was on basis decision," Paddy, 800 A.2d 294, 2002) that Saunders's colloquy (citation omitted), counsel reasoned foreclosed relief, see Letter No -Merit, filed 10/29/15, at 5-7 (unnumbered). agreed with this reasoning deny Saunders relief on this claim, see Court Opinion, at 7-8, does the Commonwealth appeal, see Commonwealth's Brief, at 7-8.

Saunders's claim his that Lockett "would could have testified" his "whereabouts" would have placed him away from commission of the crime, but represented to him she not cooperative. relied representation in agreeing with counsel's strategy trial. As he succinctly phrases brief, "[A]ppellant only made decision [to agree with strategy] based upon trial counsel's assertion she was uncooperative and not going to testify." Appellant's Brief, at This is a different claim than identified PCRA counsel, the PCRA court, the Commonwealth. bold claim. He alleges trial counsel dissembled at trial about Lockett's willingness testify. It claim bears the burden to prove. And its resolution requires credibility determination be made the PCRA court, at an evidentiary hearing, between trial counsel Lockett. v. Johnson, 966 A.2d 523, 2009) ("This Court has made clear that, in cases where the court declined hold hearing, where an assessment of witness testimony essential petitioner's ineffectiveness claims, the court must make specific credibility determinations.")

Accordingly, we remand evidentiary hearing. Upon the conclusion of the hearing, if the court finds Lockett credible, it shall further address the claim trial counsel's ineffective assistance. If it finds credible, it shall deny the claim. question remains whether court should appoint Saunders counsel remand. "[C]laims counsel's ineffectiveness may not raised for first time appeal." Henkel, A.3d 16, 20 (en banc). To preserve the issue PCRA assistance appellate review, the must first be raised response 907 notice then on appeal. See, e.g., Pitts, 981 A.2d 875, n.4 2009).

Saunders alleged the ineffective assistance of PCRA counsel in "Objections Finley Letter," on November 2015, which within the 20 -day timeframe provided the 907 notice. Furthermore, although inartfully drafted, Saunders explicitly raises claim of PCRA counsel's assistance in argument section both his first and second issues presented on appeal. See Appellant's Brief, at And he requests the appointment new in "wherefore clause." See id.,

We find Saunders preserved the issue ineffective assistance our review appeal. By misinterpreting raised pro se rendered ineffective assistance. Accordingly, remand, the court appoint new counsel.

In final issue appeal, Saunders claims the erred in refusing to grant him permission file amended petition. Rule 905(A) gives court discretion "grant leave to amend ... petition time," states post -conviction collateral relief at any "[a]mendment shall freely allowed achieve substantial justice." Pa.R.Crinn.P. 905(A).

Saunders set forth his reason requesting leave to file an amended petition in his "Objections to Finley Letter," filed November 2015, "Reply to Counsel's Response," filed December The former, mentioned, he filed within timeline of the 907 notice, while the latter filed well outside the 20 -day time limit. In both, he explained his desire file an amended petition to claim counsel failed to investigate present alibi witnesses. refused the filing of an amended because the identified claim "was [already] set forth in his original petition, fully addressed in Finley letter." Court Opinion,

The record supports the court's finding-Saunders simply sought advance already included in original petition. Permitting amendment such circumstance would futile. But we have afforded right new counsel. And Saunders has identified additional claims brief. See Appellant's Brief, at 5-6. Upon review, new counsel may file amended petition, if it deemed necessary. If files an amended is left court's discretion determine whether any of the new claims merit consideration at the evidentiary hearing.

Order vacated. Case remanded proceedings consistent with this

decision. Jurisdiction relinquished.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 4/6/2017