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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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THOMAS STUART KING,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2060 MDA 2019

Appeal from the PCRA Order Entered November 26, 2019

In the Court of Common Pleas of Fulton County Criminal Division at 

No(s): CP-29-CR-0000047-2016

BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.* 

CONCURRING MEMORANDUM BY STRASSBURGER, J.

FILED FEBRUARY 09, 2021

Under Turner/Finley1review, if counsel satisfies the technical 

requirements, this Court must conduct an independent review of the 

appellant’s issues. See Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. 

Super. 2019) (citation omitted). Upon review, I believe the PCRA court erred

in sustaining the relevance objection regarding whom Appellant spoke with 

about a purported plea offer. In order to prove prejudice for a claim that the 

ineffective assistance of counsel caused a petitioner to reject a plea offer, 

the petitioner must prove the following.

[B]ut for the ineffective advice of counsel there is a reasonable 

probability that the plea offer would have been presented to the 

 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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court (i.e., that the defendant would have accepted the plea and 

the prosecution would not have withdrawn it in light of 

intervening circumstances), that the court would have accepted 

its terms, and that the conviction or sentence, or both, under 

the offer’s terms would have been less severe than under the

judgment and sentence that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) 

(quoting Lafler v. Cooper, 566 U.S. 156, 164 (2012)). This Court has 

observed that this test “necessarily requires courts to speculate as to what 

would have transpired absent trial counsel’s ineffectiveness. Cf. Missouri v. 

Frye, 566 U.S. 134, 154 (2012) (Scalia, J., dissenting) (denouncing Lafler’s

prejudice inquiry as ‘retrospective crystal-ball gazing posing as legal 

analysis’).” Steckley, 128 A.3d at 834 (citation altered). 

Here, Appellant testified that trial counsel conveyed a plea offer and 

advised him against taking it, whereas trial counsel testified that a plea offer 

was never conveyed to Appellant because the Commonwealth did not make

one. Therefore, Appellant’s proposed testimony regarding whom he told 

about the purported plea offer is relevant because, if believed, it makes it 

more probable that an offer was conveyed to Appellant. See Pa.R.E. 401

(“Evidence is relevant if[] it has any tendency to make a fact more or less 

probable than it would be without the evidence; and [] the fact is of 

consequence in determining the action.”). Thus, I disagree with the 

Majority’s conclusions that the PCRA court did not err in sustaining the 

relevance objection and that Appellant’s claim is meritless. 
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Nonetheless, Appellant did not allege here that he would have 

accepted the purported plea offer absent counsel’s ineffectiveness. See 

Steckley, supra. Thus, even if the PCRA court had considered Appellant’s 

testimony regarding whom he spoke with about the plea offer along with 

trial counsel’s testimony that no plea offer was made, Appellant’s underlying 

PCRA claim fails and he is not entitled to relief. Accordingly, I join the 

Majority in granting counsel’s petition to withdraw and affirming the 

dismissal of Appellant’s PCRA petition.