J-S77019-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

STEVE RICHARD MCCOLLUM, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 288 MDA 2017

Appeal from the PCRA Order January 11, 2017

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

No(s): CP-22-CR-0005177-2011

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 09, 2018

Appellant, Steve Richard McCollum, Jr., has not met his burden of 

pleading and proving that the PCRA1 court erred in failing to hold an 

evidentiary hearing as to his claim that trial counsel was ineffective in advising 

Appellant not to testify on his own behalf at trial. Appellant neither attached 

an affidavit in support of his allegations nor explained why such an affidavit 

was not attached. See Pa.R.Crim.P. 902(A)(12)(b). Thus, as I would affirm 

the PCRA court’s order in its entirety,2I respectfully dissent. 

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1 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

2 To the extent the Majority suggests there is merit in Appellant’s claim that 

his due process rights were violated when the PCRA court denied his motion 

for an extension of time to respond to the Pa.R.Crim.P. 907 notice, I disagree. 

See Commonwealth v. Bond, 630 A.2d 1281 (Pa.Super. 1993). However, 

I agree with the Majority that Appellant’s remaining claims are meritless. 
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It is well-settled that “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the 

record that no genuine issues of material fact exist, then a hearing is not 

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008) 

(citation omitted). In the case sub judice, the claim at issue pertains to the

ineffective assistance of counsel. Since such a claim must meet all three 

prongs of the test for ineffectiveness,3if the PCRA court can determine without 

an evidentiary hearing that one of the prongs cannot be met, then no purpose 

would be advanced by holding an evidentiary hearing. See id.

As the Majority indicates, in Commonwealth v. Nieves, 560 Pa. 529, 

746 A.2d 1102 (2000), our Supreme Court delineated the following standard 

to apply to claims that counsel was ineffective in advising a defendant not to 

testify on his own behalf:

The decision of whether or not to testify on one’s own behalf is 

ultimately to be made by the defendant after full consultation with 

counsel. In order to sustain a claim that counsel was ineffective 

for failing to advise the appellant of his rights in this regard, the 

appellant must demonstrate either that counsel interfered with his 

right to testify, or that counsel gave specific advice so 

unreasonable as to vitiate a knowing and intelligent decision to 

testify on his own behalf.

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3 As the Majority has cogently indicated, to prevail on a claim of 

ineffectiveness, a petitioner has the burden of pleading and proving that “(1) 

the underlying substantive claim has arguable merit; (2) counsel whose 

effectiveness is being challenged did not have a reasonable basis for his or 

her actions or failure to act; and (3) the petitioner suffered prejudice as a 

result of counsel’s deficient performance.” Commonwealth v. Sneed, 616 

Pa. 1, 45 A.3d 1096, 1106 (2012) (citation omitted).
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Nieves, 746 A.2d at 1104 (internal citations omitted).

In the instant case, the following colloquy occurred in open court at 

Appellant’s jury trial: 

[TRIAL COUNSEL]: Your Honor, next to me is [Appellant]. 

[Appellant], you have sat through the entire trial; is that correct?

[APPELLANT]: Yes.

[TRIAL COUNSEL]: And we are about to rest our defense case, 

which means that we are not going to call any additional 

witnesses. However, prior to doing that, you have the opportunity 

and you have the right to testify. Do you understand that?

[APPELLANT]: Yes.

[TRIAL COUNSEL]: And do you understand that the right to 

testify is your right and your right alone?

[APPELLANT]: Yes.

[TRIAL COUNSEL]: And that if you wanted to testify, that I could 

not stop you; [the district attorney] could not stop you; and [the 

trial judge] could not prevent you from testifying, if that is what 

your choice ultimately is.

[APPELLANT]: Yes.

[TRIAL COUNSEL]: Now, you and I just had a very brief 

discussion; is that correct?

[APPELLANT]: Yes.

[TRIAL COUNSEL]: And during our discussion I gave you—I’m 

not going to say what my advice was, but I gave you certain 

advice; is that correct?

[APPELLANT]: Yes.

[TRIAL COUNSEL]: Are you under the influence of any drugs or 

alcohol?

[APPELLANT]: No, I’m not.

[TRIAL COUNSEL]: Have there been any threats or promises 

made to you prior to you deciding whether you wish to remain 

silent or you wish to testify?

[APPELLANT]: No.

[TRIAL COUNSEL]: What—do you wish to testify?
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[APPELLANT]: No, I do not.

THE COURT: [District attorney], any questions on this colloquy?

[DISTRIC ATTORNEY]: I don’t think there’s anything else to 

cover.

THE COURT: [Appellant], how far did you go in school?

[APPELLANT]: GED.

THE COURT: Okay. Do you---

[APPELLANT]: ’98.

THE COURT: Do you understand, read, and write the English 

language?

[APPELLANT]: Yes, I do.

THE COURT: Is there anything about what [trial counsel] said to 

you or that I’m saying to you now that you don’t understand?

[APPELLANT]: No, there isn’t. 

N.T., 10/17/12, at 529-32. 

In the case sub judice, Appellant does not allege interference with his 

right to testify under the first prong of the test set forth in Nieves, and indeed, 

based on the aforementioned, there would be no arguable merit to such a 

claim. However, Appellant claims that trial counsel’s specific advice was so 

unreasonable as to vitiate a knowing and intelligent decision not to testify on 

his own behalf. In this vein, he avers that trial counsel told him that, if he 

testified, the Commonwealth could impeach him with his prior firearms and 

aggravated assault convictions.

Assuming, arguendo, that pursuant to Nieves, such advice, in certain 

circumstances, may be erroneous, in this case there is no evidence of such 

advice on the record. Simply put, although there is a reference on the record 
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to trial counsel providing advice to Appellant, there is no indication on the 

record as to the substance of that advice. Further, Appellant failed to provide 

an affidavit from trial counsel to support his allegation as to the substance of 

the advice or explain the reason for the affidavit’s absence. See Pa.R.Crim.P. 

902(A)(12)(b) (PCRA petition shall contain facts supporting each ground for 

relief; if supporting facts do not appear of record “affidavits, documents and 

other evidence showing such facts” to be identified). See also 

Commonwealth v. Cousar, --- Pa. ---, 154 A.3d 287, 300 (2017) (“[T]his 

Court has dismissed claims of ineffectiveness where [the] appellant has not 

provided counsel’s affidavit; [however,] we have indicated we may overlook 

the failure where [the] appellant adequately explains why he did not submit 

it.”) (citation omitted)).

Thus, here the PCRA court did not abuse its discretion in dismissing 

Appellant’s claim without an evidentiary hearing. Accordingly, as I would 

affirm the PCRA court’s order in its entirety, I respectfully dissent. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2018