J.S52005/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

EDWARD DUNPHY, :

:

Appellant : No. 35 EDA 2013

Appeal from the PCRA Order December 14, 2012

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0010374-2008

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 05, 2015

Appellant, Edward Dunphy, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, dismissing his timely first Post 

Conviction Relief Act1(“PCRA”) petition. He alleges the PCRA court erred by 

dismissing his petition alleging trial counsel’s ineffectiveness without an 

evidentiary hearing. We vacate and remand for an evidentiary hearing.

We state the facts as set forth by a prior panel of this Court:

On June 7, 2008, at approximately midnight, Appellant 

was driving his vehicle while intoxicated, striking and 

killing a 20 year old pedestrian, Hannah Cintron, as she 

was crossing the northbound lanes of Delaware Avenue, a 

 

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9545.
J. S52005/14

- 2 -

six-lane divided highway with a speed limit of 35 miles per 

hour. Cintron suffered multiple, severe blunt impact 

injuries to her head, torso, and legs, sustaining a fractured 

hip, a fractured rib, a broken back and a ruptured aorta. 

Cintron was pronounced dead at the scene. As a result, 

Appellant was arrested and charged with murder in the 

third degree, 18 Pa.C.S.A. § 2502(c); involuntary 

manslaughter, 18 Pa.C.S.A. § 2504(a); homicide by 

vehicle, 75 Pa.C.S.A. § 3732; homicide by vehicle while 

driving under the influence, 75 Pa.C.S.A. § 3735(a); 

accident involving death or personal injury, 75 Pa.C.S.A. § 

3742; and driving under the influence of alcohol, 75 

Pa.C.S.A. § 3802(a)(1).

On July 14, 2009, Appellant proceeded to a trial before 

a jury. At trial, Dennis Wright, a valet employed at Roxxy 

nightclub in the 900 block of North Delaware Avenue, 

testified that, shortly after midnight on June 7, 2008, he 

heard the sound of a truck suddenly accelerating. He 

looked towards the sound, and observed Appellant driving 

north on Delaware Avenue at approximately 60 miles per 

hour. He also observed the victim, Hannah Cintron, 

walking across the northbound lanes of Delaware Avenue, 

in the lane closest to the median strip. Wright witnessed 

Appellant’s truck slam into Cintron, causing her to fly into 

the air, land on the hood of his truck, fly off the truck, and 

then land on the street. Wright testified that, after the 

impact, Appellant’s truck braked briefly, swerved into the 

middle lane, and then sped away at an even greater 

speed, without ever coming to a complete stop.

Joseph Stickel, who, at the time of the accident, was 

standing on the median strip separating Delaware Avenue, 

testified that he witnessed Appellant’s truck come around 

the corner, hit Cintron, and then keep going. Stickel 

stated that he heard “someone slamming on their brakes, 

and [he] looked up and [Cintron] got hit.” Based on 

Appellant’s truck hitting Cintron, Stickel observed Cintron’s 

body fly down the road and over the truck, and then land 

in the middle of the road.

After Appellant’s truck hit Cintron, Robert DeGuzman, 

who was working a security detail at Roxxy nightclub, 

entered his vehicle in an attempt to locate the person who 
J. S52005/14

- 3 -

hit Cintron. When he reached Interstate 95, he came upon 

Appellant’s truck, which matched the description of the 

truck that hit Cintron, and he began to follow it. 

DeGuzman testified that Appellant was swerving through 

traffic. When Appellant stopped at a house at the corner 

of Madison and Tilton Streets, DeGuzman ordered 

Appellant out of the truck and handcuffed him. DeGuzman 

stated that Appellant smelled strongly of alcohol, and 

Appellant said, “I’m sorry, I didn’t mean to do it. I’m 

drunk.” DeGuzman observed that Appellant’s truck was 

damaged on the driver’s side, including the windshield, 

which was “squashed all the way down.” 

Officer Michael DeRose arrived at Madison and Tilton 

Streets after DeGuzman had stopped Appellant. DeRose 

testified that, when he arrested Appellant, he noticed a 

very strong odor of alcohol on Appellant. Further, he 

stated that Appellant “kept saying over and over and over 

again that he was sorry.” 

After Appellant was arrested, Officer Robert Reppert 

interviewed him. Reppert testified that Appellant 

consented to a blood test, which was performed at 1:40 

a.m. He further testified that he questioned Appellant 

about the incident and that, Appellant stated that he had 

been at McFadden’s Bar and had consumed “several shots 

and several beers” over the course of two or three hours. 

Appellant further stated to Reppert that he then got into 

his truck and headed to his cousin’s house because he 

“didn’t think [he] could make it home.” Appellant told 

Reppert that, as he was driving on Delaware Avenue, he 

saw pedestrians crossing the street approximately 50 to 

100 yards in front of him, but he accelerated to “make the 

next light.” When asked if he struck any people with his 

truck, Appellant stated, “Not to my knowledge, no, sir.” 

Appellant admitted to Reppert that his truck had not been 

damaged earlier in the evening.

Richard D. Cohn, Ph.D., testified as an expert for the 

Commonwealth in the areas of pharmacology and forensic 

toxicology. Cohn testified that Appellant’s blood alcohol 

content was .183% at the time his blood was drawn. Cohn 

concluded that Appellant would have consumed a 

minimum of ten or eleven drinks for his blood alcohol to be 
J. S52005/14

- 4 -

.183% at the time his blood was drawn. Cohn further 

testified that, in his opinion, Appellant was incapable of 

safely operating a vehicle.

Officer William Lackman of the Philadelphia Police 

Department’s Accident Investigation Division testified as 

an expert on accident reconstruction on behalf of the 

Commonwealth. Lackman testified that Citron’s body 

came to rest about 178 feet north of where she was 

originally hit by Appellant’s truck, and that she was either 

airborne or on the hood of the truck for 135 feet. Lackman 

stated that the Airbag Control Module of Appellant’s truck 

confirmed that he was traveling between 59 and 60 miles 

an hour when he hit Cintron, and that Cintron was 

traveling approximately 50 miles per hour when she flew 

off the hood of the truck. Lackman further stated that 

there were skid marks at the scene, which indicated that 

Appellant applied his brakes after striking Cintron, but 

never came to a complete stop. Lackman concluded that 

Appellant’s truck striking Cintron caused her death.

Commonwealth v. Dunphy, 20 A.3d 1215, 1217-18 (Pa. Super. 2011) 

(citations and footnote omitted).

We add that during his opening argument, Appellant’s counsel argued 

Appellant was guilty “beyond a reasonable doubt” of homicide by vehicle 

while driving under the influence, accidents involving personal injury or 

death, and driving under the influence. N.T., 7/14/09, at 49-50. Mid-trial, 

based upon perceived conflicting evidence, Appellant’s counsel stated he 

may retract his opening argument and argue Appellant was innocent of 

homicide by vehicle. N.T. Trial, 7/15/09, at 114. The trial court was less 

than pleased and, at sidebar, expressed apparent frustration at what it 

believed was counsel’s lack of preparation:
J. S52005/14

- 5 -

The court: Well, the problem I have is the way you opened 

to the jury in this case, you took a lot of issues out of the 

case. And one of the issues you took out of the case was 

causation.

[Commonwealth]: Right.

The court: You didn’t tell the jury that at the end of the 

case you were going to ask them to find that it wasn’t 

because he was drunk that he hit the pedestrian; that it 

was because he was speeding that he hit the pedestrian; 

that being drunk had nothing to do with it. You didn’t say 

that.

You said, “At the end of the case you’re going to find 

beyond a reasonable doubt that he’s guilty of homicide by 

vehicle while DUI,” which carries—remember I asked you, 

does your client know that’s a mandatory three to six 

years? And you said, yes, you had discussed that with 

him.

Now I don’t know what to colloquy him on exactly 

because I don’t know what his perception is of what you’re 

doing. And I’m not sure what you’re doing, [Appellant’s 

counsel]. You seem to have put an issue back in the case, 

or try to.

In other words, we can put the issue back in the case, 

we can ask the jury to decide it and to disregard—you can 

ask the jury; I wouldn’t. I’ll just charge them on the law 

but to disregard what you said earlier. And I have to now 

figure out with your client when I colloquy him, is he to 

say he understands all this?

[Appellant’s counsel]: We’ve discussed it completely, Your 

Honor.

The court: That now he understands that you’re trying to 

put an issue in the case that you originally admitted to the 

jury?

[Appellant’s counsel]: Yes, he does, Your Honor.

* * *
J. S52005/14

- 6 -

The court: . . . I mean, this is the first time you figured out 

that maybe you could argue that it wasn’t the alcohol, it 

was the speed?

[Appellant’s counsel]: Your Honor, I—I really can say that 

it was as the testimony was coming about that I realized 

that his calculation was from 300 feet away, but there was 

a possibility that from the statement that it was 150 feet 

away. And when that calculation is made, it only leaves 

ten feet—if the jury assumes that it was actually 150 feet 

away, it only leaves ten feet for the avoidance of an 

accident.

The court: What was only 150 feet away?

[Appellant’s counsel]: If the range that [Appellant] gave 

that he said he observed people on the roadway was 50 to 

a hundred yards and Officer Lackman indicated that that 

was 150 to 300 feet—

The court: Yes.

[Appellant’s counsel]: —all Officer Lackman’s assumptions 

were based on 300 feet.

The court: [Appellant’s] statement.

[Appellant’s counsel]: Right.

The court: Yes.

[Appellant’s counsel]: But if the jury believes that it was 

150 feet away and that—

The court: On what basis would they believe that?

[Appellant’s counsel]: It was, according to [Appellant], 50 

yards, which would be 150 feet, or 300 feet.

The court: Yes.

[Appellant’s counsel]: If they reject that it was 300 feet 

away.
J. S52005/14

- 7 -

The court: But you always had your client’s statement, so 

you always knew that calculation; yes?

[Commonwealth]: [Appellant] said in his statement he saw 

the pedestrians in the road 50 to a hundred yards away.

The court: Yes.

[Commonwealth]: So [Appellant] perceived the hazard in 

the road. This isn’t a situation that he didn’t perceive it.

The court: No. I just don’t understand why having had 

these numbers from the day you [i.e., Appellant’s 

counsel,] first got your client’s statement, which was in the 

first discovery packet, which was at the time of his arrest—

[Appellant’s counsel]: I didn’t have the conclusion, Your 

Honor, that it was 87.9 feet per second, which would 

translate into 140 feet at 1.6 seconds of delay time.

[Commonwealth]: He had 300 feet of notice that there 

were people crossing the road. He didn’t react.

[Appellant’s counsel]: 150 to 300 feet, whichever the jury 

decides is accurate.

The court: Well, it’s his own testimony.

[Commonwealth]: Right. It’s his statement; that he 

perceived the danger in the road.

The court: But I just don’t understand why you didn’t see 

this possibility of arguing this a long time ago and avoid 

this problem that we now have of where are we in this 

case.

What are the charges that he’s admitting?

I take it he’s admitting to leaving the scene of the 

accident; he’s admitting to DUI; and he’s admitting to—

that’s it. And that the other two charges you think should 

go to the jury for their decision. And then you’re asking 

for an involuntary manslaughter charge.
J. S52005/14

- 8 -

[Appellant’s counsel]: Yes, Your Honor.

The court: On the basis that it could have been the shorter 

distance.

[Appellant’s counsel]: Yes.

The court: And then you think you can argue to the jury 

that if it was the shorter distance, nobody could have 

avoided the accident?

[Appellant’s counsel]: That’s what my argument will be, 

Your Honor, yes.

The court: All right. Let’s go. And you can make your 

motion and I’ll do the colloquy.

[Appellant’s counsel]: Yes.

Id. at 117-24 (capitalization omitted).

On July 15, 2009, after the parties presented their 

evidence and arguments to the jury, Appellant pleaded 

guilty to driving under the influence of alcohol and accident 

involving death or personal injury. The jury subsequently 

found Appellant guilty of third degree murder. On 

September 16, 2009, the trial court sentenced Appellant to 

seven to fourteen years’ imprisonment for third degree 

murder; a consecutive term of one to two years’ 

imprisonment for accident involving death or personal 

injury; and sixth months’ probation for driving under the 

influence of alcohol, to be served concurrently with his 

other sentences.

Dunphy, 20 A.3d at 1218. Appellant appealed, and this Court affirmed on 

May 6, 2011. See id. Appellant did not file a petition for allowance of 

appeal with our Supreme Court. 

On April 13, 2012, Appellant timely filed a counseled PCRA petition. 

On October 26, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice. On 
J. S52005/14

- 9 -

November 30, 2012, the PCRA court heard arguments on its Rule 907 

notice. On December 17, 2012, the PCRA court dismissed Appellant’s PCRA 

petition. Appellant timely appealed. The PCRA judge retired on December 

31, 2012, and the case was reassigned to a new judge.

On January 23, 2013, the PCRA court ordered Appellant to comply with 

Pa.R.A.P. 1925(b) within twenty-one days. Appellant’s PCRA counsel filed an 

untimely Rule 1925(b) statement on February 27, 2013.2 Because the PCRA 

judge had retired at the end of 2012, a responsive Rule 1925(a) decision 

was not prepared.

Appellant raises the following issue:

Whether, in violation of the United States and 

Pennsylvania constitutions, the PCRA court erred in 

dismissing [Appellant’s PCRA] petition on grounds of 

ineffective assistance of counsel without an evidentiary 

hearing?

Appellant’s Brief at 2. 

Appellant contends that the PCRA court should have held an 

evidentiary hearing when the trial court announced at trial that his counsel 

failed to prepare for trial and was causing the jury to be confused with an 

abrupt change of defense strategy. Id. at 22. Appellant maintains that the 

record reflects trial counsel had no excuse for his confusion and lack of 

 

2 We decline to find waiver, however. Cf. Commonwealth v. Britt, 83 A.3d 

198, 203 (Pa. Super. 2013) (holding untimely filing of Rule 1925(b) 

statement by counsel is per se ineffective assistance of counsel).
J. S52005/14

- 10 -

preparation. He insists trial counsel was ineffective for failing to object to 

the trial court’s mid-trial guilty plea colloquy as counsel was unprepared for 

trial. We hold Appellant is due limited relief, as set forth below.

“On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. AbuJamal, 941 A.2d 1263, 1267 (Pa. 2008). With respect to claims of counsel’s 

ineffectiveness, we state the following as background:

[C]ounsel is presumed to have provided effective

representation unless the PCRA petitioner pleads and

proves that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable basis for his or her conduct;

and (3) Appellant was prejudiced by counsel’s action or

omission. To demonstrate prejudice, an appellant must

prove that a reasonable probability of acquittal existed but

for the action or omission of trial counsel. A claim of

ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Further, a PCRA

petitioner must exhibit a concerted effort to develop his

ineffectiveness claim and may not rely on boilerplate

allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)

(punctuation marks and citations omitted). Our Supreme Court has made 

“clear this Court’s strong preference that counsel be heard from before being 

found ineffective.” Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 

2010). 

In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”
J. S52005/14

- 11 -

counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the

other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.” Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted).

A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim. Washington, 927 A.2d at 594. “In the context of a

PCRA proceeding, [the defendant] must establish that the ineffective

assistance of counsel was of the type ‘which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’” Id.

(citations omitted). The defendant must establish actual prejudice, or

demonstrate that the alleged act of ineffectiveness falls within a narrow

range of circumstances in which there is a presumption of prejudice. 

Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).

Given the unique set of facts and trial counsel’s strategy, as set forth 

above, and the absence of any PCRA court opinion, out of an abundance of 

caution, we think it prudent to remand for an evidentiary hearing at which 

trial counsel can testify. See Colavita, 993 A.2d at 895; see also 

Washington, 927 A.2d at 594; Miller, 431 A.2d at 234. The PCRA court 
J. S52005/14

- 12 -

shall also render its findings and conclusions on the record and prepare a 

written opinion.

Order vacated. Case remanded for an evidentiary hearing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/2015