Commonwealth v. Bradley

Decision Date20 October 2021
Docket NumberNo. 37 EAP 2020,37 EAP 2020
Citation261 A.3d 381
Parties COMMONWEALTH of Pennsylvania, Appellee v. Aaron BRADLEY, Appellant
CourtPennsylvania Supreme Court

Michael Wiseman, Esq., Wiseman & Schwartz, LLP, Philadelphia, for Appellant.

Peter E. Kratsa, Esq., West Chester, for Appellant Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.

Aaron Joshua Marcus, Esq., Leonard Sosnov, Esq., Harrisburg, for Appellant Defender Association of Philadelphia, Amici Curiae.

Chelsea Marie Nichols, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, Philadelphia, Nilam Ajit Sanghvi, Esq., John S. Summers, Esq., Philadelphia, for Appellant The Pennsylvania Innocence Project, Amici Curiae.

Lawrence Jonathan Goode, Esq., Philadelphia, Joanna Rebecca Hess Kunz, Esq., Philadelphia District Attorney's Office, for Appellee.

Ronald Eisenberg, Esq., Philadelphia, Michelle Ann Henry, Esq., Harrisburg, Jennifer Creed Selber, Esq., Pittsburgh, Joshua D. Shapiro, Esq., Harrisburg, for Appellee Office of Attorney General, Amici Curiae.

Catherine Banner Kiefer, Esq., Philadelphia, Michael F. J. Piecuch, Esq., Snyder County District Attorney's Office, for Appellee Pennsylvania District Attorneys Association, Amici Curiae.




In this appeal by allowance, we consider the procedure for enforcing the right to effective counsel in a Post Conviction Relief Act1 ("PCRA") proceeding. All parties before us acknowledge that the current approach is inadequate, and that revisions are in order, but have offered differing viewpoints. For the reasons that follow, we determine that, indeed, an overhaul of the procedure to vindicate a petitioner's right to effective PCRA counsel is appropriate, and we adopt the approach described within.2

A brief recitation of the facts and procedure underlying this appeal will facilitate an understanding of the issue before us. Appellant Aaron Bradley and Tanaya Nelson were involved in a romantic relationship. In October 2009, Nelson began attending a trade school, where she met Bruce Fox ("Victim"). The relationship between Nelson and Victim was friendly, but evidently, not romantic. On March 26, 2010, the day before Victim's murder, Appellant and Nelson went shopping. Appellant purchased a dresser for Nelson, and then dropped Nelson off at her cousin's house, where Nelson lived. About an hour after arriving at her cousin's house, Nelson realized she had missed approximately ten calls from Appellant. Nelson called Appellant back, and he began to question her about where she was and who she was with. Appellant then proceeded to Nelson's cousin's house, took Nelson's phone, and started to page through Nelson's text messages. Therein, Appellant saw a text from Victim that made him angry. Appellant then left the residence, taking Nelson's cell phone with him. Nelson attempted to call Appellant from her cousin's phone and her cousin's boyfriend's phone, to no avail. Appellant returned Nelson's phone the following morning.

Upon recovering her phone, Nelson received a phone call from Philadelphia police detectives requesting a meeting. Nelson realized that her call and text message logs had been deleted, however, she knew that she herself had not deleted them prior to Appellant taking her phone. The Commonwealth retrieved the deleted call log and text messages through a forensic examination.

The examination revealed a number of text messages were sent between Nelson's phone and Victim's phone between 1:07 a.m. and 2:42 a.m. The messages from Nelson's phone requested that Victim pick her up at the location where Victim's murder occurred. Victim's responses indicated that he agreed to do so, and identified himself as being at the intersection where the murder took place. During this same time frame, Philadelphia police responded to a call regarding shots fired at an intersection in South Philadelphia, and discovered Victim hanging from his vehicle. He had been shot several times, and later died at a local trauma center.

Nelson relayed to police that she did not send or receive any of the recovered texts, that when her phone was returned to her, all these texts had been deleted from her phone, and that she had no animosity towards Victim. On July 9, 2012, Appellant was arrested and charged with first-degree murder, possessing an instrument of crime ("PIC"), and carrying a firearm on a public street in Philadelphia related to his involvement in the shooting death of Victim.

The case proceeded to a jury trial, which commenced on February 19, 2014. On February 26, 2014, the jury found Appellant guilty of all charges. That same day, the trial court sentenced Appellant to a mandatory term of life imprisonment for his conviction of first-degree murder, and concurrent terms of 2½ to 5 years imprisonment for the PIC and firearms offenses. On direct appeal, Appellant was represented by court-appointed counsel, John Belli, Esquire. The Superior Court affirmed Appellant's judgment of sentence in an unpublished decision, authored by then-Judge, now-Justice Mundy, and, thereafter, on December 30, 2015, our Court denied his petition for allocatur review.

On November 23, 2016, Appellant timely filed a pro se petition under the PCRA. Although an attorney was appointed to represent Appellant, he was later permitted to withdraw when Appellant privately retained D. Wesley Cornish, Esquire, to litigate his PCRA petition. On June 21, 2017, counsel filed an amended petition, which he titled a Motion for a New Trial, raising a claim of after-discovered evidence. Counsel subsequently filed three supplemental amended petitions raising various claims of trial court error and challenges to trial counsel's effective assistance. On October 5, 2018, the Commonwealth filed a motion to dismiss the PCRA petition, asserting Appellant's claims were meritless, underdeveloped, or previously litigated.

On December 11, 2018, the PCRA court issued notice of its intent to dismiss the petition without conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907 (" Rule 907"), and, consistent therewith, informed Appellant that he had 20 days to file a response. The form utilized by the PCRA court contained seven options for the court to mark as the reason for dismissal. The PCRA court checked a box indicating that the issues were without merit, but did not provide any further information.

On January 2, 2019, the 22nd day after the court issued its Rule 907 notice – thus, two days outside the response window – counsel filed a motion for extension of time to file a response. The PCRA court did not address that motion, but, rather, on January 16, 2019, entered an order dismissing Appellant's PCRA petition. PCRA counsel filed a timely notice of appeal to the Superior Court.

On March 13, 2019, Appellant's present attorney, Michael Wiseman, Esquire, entered his appearance in the Superior Court. On September 10, 2019, counsel filed a motion which solely requested a remand to the PCRA court so that he could raise allegations of initial PCRA counsel's3 ineffectiveness for failing to raise several claims concerning both trial and direct appeal counsel's ineffectiveness, and for raising issues in the amended petition which were previously litigated on direct appeal. The Commonwealth did not oppose the remand request.4

A three-judge panel of the Superior Court, in an unpublished memorandum opinion, found itself constrained to affirm the PCRA court's order dismissing Appellant's appeal, explaining that he waived his challenge to the adequacy of PCRA counsel's effectiveness under current law, and that he could not challenge PCRA counsel's effectiveness on appeal. Judge McCaffery, writing for the Superior Court panel, first noted that it was well-established that petitioners have a rule-based right to the assistance of counsel to litigate their first PCRA petition, citing Pa.R.Crim.P. 904(C) ("[W]hen an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief."). However, the court explained that, although it was an "imperfect solution" to the dilemma of how to enforce the right to effective PCRA counsel, any challenge asserting ineffective assistance of PCRA counsel was required to be raised within the 20-day response period after receiving a Rule 907 notice; otherwise, such claims were deemed to be waived. Consistent therewith, the Superior Court offered that it was bound by the teachings of our Court's decision in Commonwealth v. Pitts , 603 Pa. 1, 981 A.2d 875 (2009), discussed at greater length, infra , and subsequent Superior Court en banc decisions in Commonwealth v. Ford , 44 A.3d 1190 (Pa. Super. 2012), and Commonwealth v. Smith , 121 A.3d 1049 (Pa. Super. 2015), that a petitioner may not raise a claim of PCRA counsel ineffectiveness for the first time on appeal.

After detailing the arguments of Appellant and the Commonwealth in favor of a remand, the Superior Court expressed concern regarding the current process for preserving claims of ineffective assistance of PCRA counsel. The panel suggested that, particularly in situations in which counsel does not seek to withdraw from representation, the current waiver rule was flawed. According to the court, this was because the PCRA's time limitations made it difficult, if not impossible, to seek relief from an ineffective PCRA attorney in a subsequent petition. While the Superior Court recognized that Appellant was requesting a remand of the ineffectiveness claims, rather than asking the court to review them in the first instance, it determined this to be a distinction without a difference. Acknowledging that it was constrained by its prior en banc decisions, the Superior Court nevertheless urged our Court's rules committees to consider amending the...

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