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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

v.
THOMAS STUART KING ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANI A

No. 2060 M DA 2019 Appeal from the PCRA Order Entered November 26 , 2019 I n 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.*
CONCURR ING MEMORANDUM BY STRASSBURGER, J. FILED FEBRUARY 09, 2021
Under Turner/Finley 1 review, 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) (citat ion omitted). Upon review, I believe the PCRA court erred
in sus taining 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 pe titioner 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 ).J

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court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sen tence, or both, under the offer’ s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 wh at
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 an y 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 conclusion s that the PCRA court did not err in sustaining the
releva nce objection and that Appellant’s claim is meritless.J

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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 Appe llant’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 cou nsel’s petition to withdraw and affirming the
dismissal of Appellant’s PCRA petition.