J-S45027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEE RICHARD ENDERLE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 971 EDA 2020

Appeal from the PCRA Order Entered March 5, 2020,

in the Court of Common Pleas of Chester County,

Criminal Division at No(s): CP-15-CR-0002900-2013.

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 14, 2021

Lee Richard Enderle appeals pro se from the order denying in part and 

granting in part his first petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We reverse the PCRA court’s order, 

and remand for an evidentiary hearing. 

The pertinent facts and protracted procedural history1 are as follows: 

Enderle was charged with multiple sexual offenses following an incident with 

his seven-year old neighbor. The trial court appointed a public defender to 

represent Enderle, and trial counsel entered her appearance as Enderle’s 

____________________________________________

1 Throughout these proceedings, Enderle has been at odds with his appointed 

counsel, and has filed multiple pro se motions, at times sending them directly 

to the trial court. This has made our review of the certified record difficult. 

In the above summary, we highlight only these filings, as well as those filed 

by counsel, that are relevant to the issues Enderle raises on appeal.
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counsel on August 29, 2013. Thereafter, the parties engaged in discovery and 

plea negotiations.

On April 18, 2014, trial counsel filed a habeas corpus petition on 

Enderle’s behalf, in which Enderle claimed the evidence presented by the 

Commonwealth at his preliminary hearing did not establish a prime face case 

as to some of his charges. On May 6, 2014, the Commonwealth filed a motion 

to permit the victim to testify by contemporaneous alternative method 

pursuant to 42 Pa.C.S.A. section 5985. The trial court scheduled a hearing on 

both motions for May 7, 2014. 

At this hearing, the trial court decided that it would first determine the 

Commonwealth’s motion.2 The victim’s mother testified about how the 

victim’s behavior had changed since the incident, and the trial court 

interviewed the victim.3 Considering all of this evidence, the trial court 

concluded that if the victim “had to testify in the presence and full view of 

____________________________________________

2

Initially, the trial court discussed with the parties a letter it received from 

Enderle in which Enderle complained about trial counsel. At that time, Enderle 

informed the court of his concerns. Ultimately, he informed the court that, 

“at this moment,” he was satisfied being represented by trial counsel. N.T., 

5/7/14, at 74. However, after trial counsel stated that she would not contest 

some of the charges, Enderle objected and requested a change of counsel. 

Id. at 77-78. The trial court denied this request, but later informed Enderle 

“to think long and hard” about proceeding without a lawyer. Id. at 96. 

3 The Commonwealth also informed the trial court of the substance of the 

victim’s therapist proposed testimony. The Commonwealth had not asked her 

to appear given its belief that its motion was unopposed. See N.T., 5/7/14, 

at 29-30.
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[Enderle] it would result in her suffering serious emotional distress that would 

substantially impair her ability to communicate.” N.T., 5/7/14, at 30. The 

trial court then allowed the victim to testify via a contemporaneous alternative 

method for the purpose of considering Enderle’s habeas motion. At the 

hearing’s conclusion, the trial court denied Enderle’s motion.

On June 4, 2014, the trial court held a pre-trial hearing on several 

matters, including a pro se “PCRA Ineffective Assistance of Counsel” motion 

filed by Enderle, in which he expressed his desire to dismiss trial counsel and 

have a different attorney appointed. Following a thorough colloquy by the 

trial court, Enderle was permitted to proceed pro se. See N.T., 6/4/14, at 29. 

The court and the parties then discussed the possibility of Enderle personally 

cross-examining the witness at trial. The trial court asked the parties to 

research the topic and determined the issue would be revisited at trial. 

On July 31, 2014, the court held a pre-trial hearing to determine 

whether the victim would be allowed to testify via a contemporaneous 

alternative method at trial. At this hearing, the Commonwealth presented the 

testimony of the victim’s mother and Kathy O’Connell, a therapist who had 

been treating the victim for eight months. Ms. O’Connell testified that the 

victim was referred to her for treatment after a psychiatrist diagnosed as 

suffering from post-traumatic stress disorder. See N.T., 7/31/14, at 28. 

According to Ms. McConnell, requiring the victim to testify in Enderle’s 

presence, or permit him to cross-examine her would act as a “trigger” and 

cause her to relive her trauma. See id. at 40-41. 
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After hearing this evidence, and hearing argument from the 

Commonwealth and pro se argument from Enderle, the trial court concluded:

I find that their testimony has established that for this victim 

to testify in [Enderle’s] presence, that would result in this 

child victim suffering serious emotional distress, that would 

substantially, impair this child victim’s ability to reasonably 

communicate and the interfering with her ability to 

communicate. Both witnesses felt that she would not be 

able to testify about what she allegedly experienced. If she 

was in front of [Enderle], or if he were allowed to ask 

her questions, she would not be able to reasonably 

communicate.

***

So having found the child [victim] will suffer serious 

emotional distress, and that would substantially impair the 

child victim to reasonably communicate, I am granting the 

Commonwealth’s motion for testimony by contemporaneous 

alternative method.

N.T., 7/31/14, at 75-77 (emphasis added). 

The trial court informed Enderle that he “still [had] the right to present 

questions to [the victim]. It’s just she will not her your voice.” Id. at 77-78. 

The court then appointed prior trial counsel to act as standby counsel, and a 

method was determined whereby any questions Enderle wished to ask the 

victim would be communicated to standby counsel. In response, Enderle 

persisted that refusing to permit him to cross-examine the victim directly 

violated his constitutional rights of confrontation and due process.

When Enderle’s trial began, he requested that trial counsel represent 

him. Trial counsel requested a continuance so that she could further prepare. 

The trial court denied this request, and Enderele’s trial began with trial counsel 
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and another assistant public defender acting as co-counsel. Following a fourday trial, a jury convicted him on all of the charges. On March 6, 2015, the 

trial court sentenced him to an aggregate term of nine to eighteen years of 

imprisonment and a consecutive ten-year probationary term. The trial court 

denied Enderle’s timely post-sentence motion. Although Enderle originally 

filed a notice of appeal to this Court, he later discontinued it by order entered 

August 5, 2016.

On April 20, 2017, Enderle filed a timely pro se PCRA petition in which 

he raised multiple claims of trial court error, asserted that 42 Pa.C.S.A. § 5985 

(relating to testimony by contemporaneous alternative method) was 

unconstitutional, and claimed the Commonwealth violated Brady v. 

Maryland, 373 U.S. 83 (1963). In addition, he claimed trial counsel was 

ineffective for: 1) failing to impeach the victim with inconsistent statements;

2) not objecting to testimonial hearsay and videos of forensic interviews by 

police; and 3) not objecting to a Commonwealth’s witness reading his police 

statement out loud as part of his trial testimony. The PCRA court appointed 

counsel.

On August 18, 2017, PCRA counsel filed a motion to withdraw and “nomerit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc). Enderle filed a pro se response. By order entered September 20, 

2017, the PCRA court directed PCRA counsel to review Enderle’s response and 

then either file an amended petition or a supplemental Turner/Finley letter. 
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PCRA counsel filed a second motion to withdraw and supplemental 

Turner/Finley letter on October 20, 2017. Thereafter, Enderle filed another 

pro se response.

On November 5, 2018, the PCRA court issued a Pa.R.A.P. 907 notice of 

its intent to dismiss Enderle’s PCRA petition without a hearing. Enderle filed 

a timely response. 

On April 29, 2019, Enderle filed a pro se supplemental PCRA petition in 

which he asserted that his designation as a sexually violent predator (SVP) 

was unconstitutional given this Court’s decision in Commonwealth v. Butler, 

173 A.3d 1212 (Pa. Super. 2017), reversed 226 A.3d 972 (Pa. 2020). In this 

filing, Enderle further contended that his trial counsel was ineffective for 

conceding his guilt of some of the charges during her closing argument without 

his consent, pursuant to McCoy v. Louisiana, 138 S.Ct. 1500 (2018). Once 

again, the PCRA court directed PCRA counsel to review Enderle’s pro se filing 

and either file an amended PCRA petition or proceed with his petition to 

withdraw and submit another supplemental Turner/Finley letter. 

On July 1, 2019, PCRA counsel filed an amended petition in which 

Enderle raised the sole contention that his designation as an SVP constituted 

an illegal and unconstitutional sentence. In a footnote, PCRA counsel also 

discussed Enderle’s reliance upon McCoy, supra, for the proposition that “a 

defendant has a right under the Sixth Amendment of the United States 

Constitution to insist that his counsel refrain from admitting his guilt, even if 

counsel had a reasonable strategy for doing so.” See Amended Petition, 
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7/1/19, at 7 n.3. According to PCRA counsel, this claim had no merit because 

an attorney cannot be declared ineffective for failing to anticipate a change in 

the law, and because neither the federal or state supreme court has held that 

the McCoy ruling applies retroactively. See id. 

On July 12, 2019, Enderle filed a motion to compel a hearing, in which 

he essentially asserted PCRA counsel’s ineffectiveness and his desire to have 

a Grazier hearing.4 In a supplemental answer, the Commonwealth conceded 

that Enderle’s SVP designation should be vacated and a hearing held for the 

sole purpose of issuing the appropriate registration notice. Enderle filed a 

response. 

Following a Grazier hearing on October 18, 2019, the PCRA court 

permitted PCRA counsel to withdraw and appointed new counsel (“second 

PCRA counsel”). On February 18, 2020, second PCRA counsel filed a petition 

to withdraw and a Turner/Finley “no-merit” letter. In an order entered March 

5, 2020, the PCRA court denied Enderle post-conviction relief.5 Additionally, 

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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

5 The PCRA court issued its order denying Enderle’s PCRA petition without 

again issuing a Rule 907 notice of its intent to do so. On March 18, 2020, 

Enderle filed a document entitled “Nuc [sic] Pro Tunc” in which he noted that 

the PCRA court did not issue Rule 907 notice, and reiterated claims regarding 

first PCRA counsel. On that same date, Enderle also filed a motion for another 

Grazier hearing, as well as a Rule 907 response, in which he asserted that 

second PCRA counsel was ineffective for failing to raise four issues in an 

amended PCRA. Enderle attached to his response a letter he had sent second 

PCRA counsel identifying these issues. Enderle also filed a pro se amended 

PCRA petition.

(Footnote Continued Next Page)
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upon the agreement of the Commonwealth, the PCRA court granted Enderle’s 

amended petition insofar as the court vacated Enderle’s SVP designation and 

scheduled a hearing for April 27, 2020. Finally, the PCRA court granted second 

PCRA counsel’s request to withdraw. This timely pro se appeal followed. The 

PCRA court did not require Pa.R.A.P. 1925 compliance.

Enderle raises the following five issues on appeal:

1) Was [second PCRA counsel] ineffective for not raising 

four (4) issues in [Enderle’s PCRA]?

2) Were both post-sentencing and direct appeal [counsel] 

ineffective for not raising a structural error in [Enderle’s]

appeal proceeding?

3) Were both post-sentencing and direct appeal [counsel] 

ineffective for not raising how 42 Pa.C.S.A. § 5985 is 

unconstitutional to a [pro se] litigant in [Enderle’s] 

appeal proceeding[?]

4) Was trial counsel ineffective for conceding guilt upon 

[Enderle] during closing argument, violating A.B.A. 

Model Rule of Professional Conduct 1.2(a) which violated 

[his] autonomy rights and denied [Enderle] a fair trial 

under [the federal and state constitutions]?

5) Did the trial court [err] by forcing [Enderle] to trial 

without the effective aid and assistance of counsel?

Enderle’s Brief at unnumbered 7 (excess capitalization and citations to brief 

omitted).

____________________________________________

By order entered April 29, 2020, the PCRA court issued Rule 907 notice 

of its intent to dismiss Enderle’s amended petition as an untimely second PCRA 

petition. In addition, the PCRA court denied Enderle’s additional filings.

 

 
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Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the 

findings of the PCRA court and the evidence on the record 

of the PCRA court's hearing, viewed in the light most 

favorable to the prevailing party. Because most PCRA 

appeals involve questions of fact and law, we employ a 

mixed standard of review. We defer to the PCRA court's 

factual findings and credibility determinations supported by 

the record. In contrast, we review the PCRA court's legal 

conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) 

(citations omitted).

The PCRA court has discretion to dismiss a petition without 

a hearing when the court is satisfied that there are no 

genuine issues concerning any material fact, the defendant 

is not entitled to post-conviction collateral relief, and no 

legitimate purpose would be served by further proceedings. 

To obtain a reversal of a PCRA court’s decision to dismiss a 

petition without a hearing, an appellant must show that he 

raised a genuine issue of material fact which, if resolved in 

his favor, would have entitled him to relief, or that the court 

otherwise abused its discretion in denying a hearing. 

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations 

omitted).

To be eligible for relief pursuant to the PCRA, a petitioner must establish, 

inter alia, that his conviction or sentence resulted from one or more of the 

enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). In his first 

four issues, Enderle raises claims involving the ineffective assistance of 

counsel. To obtain relief under the PCRA premised on a claim that counsel 

was ineffective, a petitioner must establish by a preponderance of the 
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evidence that counsel’s ineffectiveness so undermined the truth determining 

process that no reliable adjudication of guilt or innocence could have taken 

place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). 

“Generally, counsel’s performance is presumed to be constitutionally 

adequate, and counsel will only be deemed ineffective upon a sufficient 

showing by the petitioner.” Id. This requires the petitioner to demonstrate 

that: (1) the underlying claim is of arguable merit; (2) counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) petitioner 

was prejudiced by counsel's act or omission. Id. at 533. A finding of 

"prejudice" requires the petitioner to show "that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different." Id. A failure to satisfy any prong of 

the test for ineffectiveness will require rejection of the claim. 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

Central to Enderle’s first three claims of ineffectiveness of counsel, is 

the assertion that prior counsel, including second PCRA counsel, were 

ineffective for failing to raise and/or preserve his assertion that refusing to 

permit him to cross-examine the victim at trial violated his constitutional 

rights of confrontation, as well as challenging as unconstitutional 42 Pa.C.S.A.

section 5985 when applied to a pro se litigant. As to second PCRA counsel’s 

ineffectiveness, we note that Enderle arguably preserved this claim below. 

See n.5, supra. Regarding post-sentence and direct appeal counsel, Enderle 
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has not properly raised a layered claim of ineffective assistance of counsel. 

See generally, Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003). 

Nevertheless, we conclude that Enderle has failed to establish that either 

of his substantive claims are of arguable merit.

Enderle asserts his right to confrontation and due process was violated. 

In Commonwealth v. Tighe, 184 A.3d 560 (Pa. Super. 2018), the defendant 

represented himself at trial and was found guilty of various sex offenses 

perpetuated against a fifteen-year-old victim. As was proposed in this case, 

the trial court required standby counsel to cross-examine the victim and ask 

her all questions on Tighe’s behalf by using written questions prepared in 

advance by Tighe prior to cross-examination.

Among the multiple issues he raised in a counseled appeal, Tighe 

asserted that the trial court violated his Sixth Amendment under both the 

United States Constitution and Article I, Section 9 of the Pennsylvania 

Constitution by refusing to allow him to personally cross-examine the victim. 

This Court recognized the constitutional right at issue as the right of selfrepresentation:

 Succinctly stated, [Tighe] argues that the right to 

represent himself necessarily includes the right to act as 

attorney for all purposes, and cannot be limited. [Tighe] 

also notes that requiring [standby] counsel to ask the 

questions amounts to hybrid representation, which is 

impermissible.

Tighe, 184 A.3d at 566.
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Before addressing Tighe’s substantive claim, this Court noted that 

“[Tighe] explicitly distance[d] himself from the analysis offered by the 

Commonwealth and the trial court, which focused on the Sixth Amendment 

right of confrontation.” Id. Nevertheless, because “other jurisdictions that 

have considered this issue has drawn parallels to that right, we begin our 

analysis there.” Id.

This Court then discussed thoroughly federal decisions stating that the 

constitutional right to confrontation is not absolute and discussing limitations 

that could be placed on that right. In particular, we discussed the United 

States Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990):

Craig determined that a “State’s interest in the 

physical and psychological well-being of child abuse 

victims may be sufficiently important to outweigh, at 

least in some cases, a defendant’s right to face his or 

her accusers in court.” [Craig, 497 U.S. at 853]. 

Simultaneously, the Court required “an adequate 

showing of necessity” to justify the use of the 

procedure, which “of necessity must of course be a 

case-specific one[.]” Id. at 855[.] The mere fact that 

face-to-face confrontation is generically traumatic and 

unpleasant was not sufficient. As to the second 

component, that the reliability of the testimony is 

otherwise assured, the Court determined that the 

[Maryland statute at issue] protected

all of the other elements of the confrontation 

right: The child witness must be competent to 

testify and must testify under oath; the 

defendant retains full opportunity for 

contemporaneous cross-examination; and the 

judge, jury, and defendant are able to view 

(albeit by video monitor) the demeanor (and 

body) of the witness as he or she testifies. 

Although we are mindful of the many subtle 
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effects face-to-face confrontation may have on 

an adversary criminal proceeding, the presence 

of these other elements of confrontation—oath, 

cross-examination and observation of the 

witness’ demeanor—adequately ensures that 

the testimony is both reliable and subject to 

rigorous adversarial testing in a manner 

functionally equivalent to that accorded live, inperson testimony.

Id. at 851[.]

Tighe, 184 A.3d at 567-68 (footnote omitted). 

In Tighe, this Court recognized that Craig was a case involving the 

confrontation clause and did not address the right to self-representation. We 

then discussed Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) (en banc), in 

which the United States Court of Appeals for the Fourth Circuit “held that a 

court could properly prevent a pro se defendant from cross-examining the 

child victims where the defendant conceded that the motivation for 

representing himself was to cross-examine the victims.” Tighe, 184 A.3d at 

568. This Court then cited Fields’ reasoning that “[i]f a defendant’s 

Confrontation Clause right can be limited in the manner provided in Craig, we 

have little doubt that a defendant’s self-representation right can be similarly 

limited.” Id. We then quoted the following from Fields:

Fields’ self-representation right could have been properly 

restricted by preventing him from cross-examining 

personally some of the witnesses against him, which is one 

“element” of the self-representation right, if, first, the 

purposes of the self-representation would have otherwise 

been assured and, second, the denial of such personal 

cross-examination was necessary to further an important 

public policy.
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Id. 

In Tighe, this Court further recognized that the Fields court “noted that 

the purpose of self-representation was ‘to allow the defendant to affirm [his]

dignity and autonomy’ and to present what he believes is his best possible 

defense.” Tighe, 184 A.3d at 568 (quoting Fields, 49 F.3d at 1035). As we 

explained, however:

[Fields] recognized that the defendant’s dignity and 

autonomy were obviously limited by preventing personal 

cross-examination, thus affecting the jury’s perception that 

he was representing himself. However, the court 

determined that this restriction only “reduced slightly” his 

ability to present a chosen defense. That ability was

otherwise assured because he could have personally 

presented his defense in every other portion of the 

trial and could have controlled the cross-examination 

by specifying the questions to be asked. As a result, 

we are convinced that the purposes of the selfrepresentation right were better “otherwise assured” 

here, despite the denial of personal crossexamination, than was the purpose of the 

Confrontation Clause right in Craig when the 

defendant was denied face-to-face confrontation with 

the witnesses.

Id. at 1035-36.

Tighe, 184 A.3d at 568-69.

In Tighe, we further noted that, in “[a]ddressing the second aspect of 

Craig, the State’s interest, the court determined that since Craig held that 

the interest in the physical and psychological well-being of child abuse victims 

could outweigh the right to face-to-face confrontation, it followed that the 

right to self-representation could be limited for the same reason. Id. at 569.
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After discussing the above holdings, this Court in Tighe again noted

that, because Tighe did not claim a deprivation of his Confrontation Clause 

rights, the only question to be addressed was “whether the principle 

announced in Craig, which permitted a procedure that limited the 

Confrontation Clause rights due to the countervailing interests of the victim 

when the procedure otherwise preserved the reliability of the crossexamination, should be adopted in this Commonwealth as a permissible 

restriction on the right of self-representation.” Tighe, 184 A.3d at 569.

This Court answered this question in the affirmative. After discussing 

and rejecting arguments from case law relied upon by Tighe, this Court 

concluded:

We are persuaded by the analysis set forth in Fields that, if 

the constitutional right of confrontation can be limited on 

the basis of emotional trauma to the victim, then it follows 

that the same State interest serves to justify the restriction 

at issue. Indeed, the fact that Craig permitted a limitation

of actual face-to-face confrontation suggests that the lesser 

intrusion herein, where [the victim] was subjected to [crossexamination by standby counsel, while in the same 

courtroom as Tighe,] is permissible. Additionally, we find 

that this intrusion did not affect the jury’s perception that 

[Tighe] was representing himself[.] With the exception of 

this one witness, [Tighe] cross-examined all other 

witnesses, made opening and closing statements, and 

otherwise presented his own defense according to his 

wishes.
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Tighe, 184 A.3d at 571 (footnote omitted). Because this Court determined 

that Tighe’s constitutional rights were not violated, we held that the trial court 

did not err in preventing him from personally cross-examining the victim.6

Here, by contrast, Enderle chose to have trial counsel represent him, 

and trial counsel and co-counsel always represented him prior to the jury’s 

verdicts. Enderle challenges the denial of his ability to cross-examine the 

victim as violative of both his confrontation rights and his right to selfrepresentation. Unlike the facts of Tighe, however, there exists ample 

evidence in the certified record to support the trial court’s ruling that the 

seven-year-old victim suffered from Post Traumatic Stress Disorder following 

the incident such that permitting Enderle to personally cross-examine the 

victim would cause further emotional trauma to her. Thus, the facts of this 

case present even a stronger basis to affirm the proposed limitations placed 

upon Enderle’s pro se right to confront and cross-examine the victim.

Moreover, since the same method would have been used had Enderle 

chose to represent himself at trial, his right to self-representation was not 

violated. Tighe, supra. Unlike the situation in Enderle’s trial, the fifteen-

____________________________________________

6 Our Supreme Court granted allowance of appeal in Tighe, and, in a plurality 

decision, affirmed, albeit on an alternative basis—that no constitutional 

violation occurred because Tighe forfeited his right to personally crossexamine the victim after he willfully violated his bail conditions by contacting 

her prior to trial and imploring her not to pursue his prosecution of sex 

offenses he committed upon her. Commonwealth v. Tighe, 224 A.3d 1268, 

1280-82 (Pa. 2020). 
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year-old victim in Tighe did not testify via an alternative contemporaneous 

method. Nevertheless, given the discussion of the right to confrontation and 

self-representation by this Court in Tighe, supra, Enderle’s related claim of 

ineffectiveness regarding the unconstitutional application of 42 Pa.C.S.A. 

section 5985 to a pro se litigant is also is without merit. Thus, Enderele’s 

first three issues fail.

In his fourth issue, Enderle asserts that trial counsel was ineffective for 

conceding his guilt during her closing argument. Although Enderle raised this 

issue in his supplemental PCRA motion, both his second PCRA counsel, and 

the first attorney who filed two Turner/Finley letters previously, see infra, 

concluded that this claim lacked merit because the case Enderle relied upon 

to support his claim, McCoy v. Louisiana, 138 S.Ct. 1500 (2018), was 

decided after his jury trial. The PCRA lawyers believed trial counsel could not 

be found ineffective for failing to anticipate a change in the law. In addition, 

both attorneys asserted that neither the federal nor state supreme court have 

applied McCoy retroactively. The Commonwealth and the PCRA court reach 

the same conclusion.

We disagree. As explained more fully below, McCoy did not constitute 

a change in the law, and Enderle had raised his claim of ineffectiveness 

regarding a violation of his right to autonomy in a timely PCRA petition. Thus, 
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we address the merits of the claim. See generally Commonwealth v. Ruiz, 

131 A.3d 54 (Pa. Super. 2015).7

In McCoy, supra, the United States Supreme Court held that under the 

Sixth Amendment, a defendant has a right to insist that his counsel refrain 

from conceding guilt during the guilt phase of a capital trial, even when the 

attorney reasonably believes the concession is an essential part of a strategy 

to avoid the death penalty. McCoy, 138 S.Ct. at 1509. The McCoy court also 

determined that allowing a defendant’s attorney to proceed with that strategy 

over his client’s objections was a structural error on the part of the trial court 

that entitled McCoy to a new trial and did not necessitate a finding of 

prejudice. Id. at 1511. 

Moreover, the McCoy decision did not constitute a change in the law. 

As our Supreme Court has stated:

[O]nly a criminal defendant has the authority to concede 

criminal liability and authorize counsel to present a defense 

of diminished capacity. Counsel cannot do so over the 

objections of a client who maintains his innocence. 

Commonwealth v. Weaver, ___ Pa. ___, 457 A.2d 505, 

506-7 (1983) (holding that even if diminished capacity was 

the only viable defense, trial counsel would be deemed 

ineffective for presenting this defense without consent of the 

defendant).

____________________________________________

7 We reject the Commonwealth’s claim that Enderle has waived this issue 

because he never raised this issue with the PCRA court during his PCRA 

proceedings. As summarized above, however, Enderle did raise the issue, but 

both PCRA counsel found it to be without merit. Additionally, we note that the 

PCRA court addressed the issue. Given these circumstances, we decline to 

find waiver.
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Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013). Further, a recent 

panel of this Court explained:

[A] defendant’s “secured autonomy” under the Sixth 

Amendment is not a “new” constitutional right. See, e.g., 

Florida v. Nixon, [543 U.S. 175 (2004)] (recognizing 

defendant’s ultimate authority to decide whether to plead 

guilty, waive jury trial, testify in his own defense, or take 

appeal); Faretta v. California, [422 U.S. 806 (1975)] 

(explaining Sixth Amendment grants to accused personally 

right to make his own defense; Sixth Amendment speaks of 

“assistance” of counsel; “assistant,” however expert, is still 

assistant). McCoy simply applied a defendant’s well-rooted 

Sixth Amendment right to autonomy to a new set of 

circumstances.

Commonwealth v. Hoffman, 2020 WL 200838 at *2 (Pa. Super. 2020) 

(unpublished memorandum).8

Finally, because a concession of guilt by counsel over a defendant’s 

objection constitutes “structural error,” Enderle’s issue poses a pure question 

of law, to which we apply a de novo standard of review. See Commonwealth 

v. Tejada, 188 A.3d 1288, 1292-93 (Pa. Super. 2018).

Here, Enderle did not testify at trial. Our review of his multiple filings 

in this case establishes that Enderle has consistently maintained his innocence 

of all the charges, and at no time authorized trial counsel to concede 

otherwise. In her closing argument, however, trial counsel stated:

____________________________________________

8 See Operating Procedures of the Superior Court, § 65.37B (providing “[n]onprecedential decisions filed after May 1, 2019, may be cited for their 

persuasive value).
J-S45027-20

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At the beginning of this case, I also told you that Mr. 

Enderle was innocent unless the prosecution proves beyond 

a reasonable doubt that he is not, and that was true. And 

what I will say to you now is I believe the Commonwealth 

has met their burden on some of these charges, but 

certainly not all of the charges.

N.T., 8/7/14, at 74. A violation of Enderle’s “secured autonomy” under the 

Sixth Amendment could not be clearer. 

Thus, we conclude that Enderle has raised a material issue of fact—

whether he consented to trial counsel’s concession of guilt to some of the 

charges the Commonwealth filed against him. Because resolution of this fact 

involves a credibility assessment, and the PCRA court dismissed the claim 

without a hearing, we remand this matter so that the PCRA court can hold an 

evidentiary hearing, as to only this issue, after which it can make the required 

factual and credibility determinations, and grant post-conviction relief if 

appropriate. See Commonwealth v. Shaw, No. 21 MAP 2020, at 15-16 

(Pa., March 25, 2021) (reversing this Court’s grant of a new trial based upon 

a meritorious post-conviction issue, and remanding to the PCRA court as the 

proper “forum for the evidentiary and factual development” of the claim).9 

The PCRA court shall appoint new counsel for Enderle.

Order reversed. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.

____________________________________________

9 Given this disposition we need not address Enderle’s fifth issue, in which he 

essentially reiterates his claim regarding trial counsel conceding his guilt to 

some of the charges.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/14/21