J-S46014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OMAR JAMAL GILMORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 48 WDA 2023

Appeal from the PCRA Order Entered December 14, 2022

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

No(s): CP-63-CR-0000392-2018

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED: April 10, 2024

Appellant, Omar Jamal Gilmore, appeals from the December 14, 2023 

order denying his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful review, we remand with 

instructions.

The relevant facts and procedural history are as follows. On January 

12, 2018, law enforcement personnel, acting pursuant to a valid search 

warrant, discovered drugs and drug paraphernalia at a residence that 

Appellant shared with Alexandria Moltz.1 Appellant was present at the time of 

the search and police arrested him and charged him with numerous offenses. 

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1

In particular, law enforcement discovered 486 dosage units of heroin, a 

“substantial amount” of marijuana, two digital scales, an “owe-sheet” 

indicating money owed by specific individuals, plastic baggies, multiple pieces 

of paraphernalia, and $56.
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On August 15, 2019, following a one-day waiver trial2 at which James 

Jeffries, Esquire, represented Appellant, the trial court convicted Appellant of 

one count each of Possession with Intent to Deliver and Possession of Drug 

Paraphernalia, and two counts of Possession of a Controlled Substance.3 On 

January 27, 2020, the court sentenced Appellant to an aggregate term of 21⁄2 

to 6 years of incarceration. Appellant did not file a timely appeal from his 

judgment of sentence.

Appellant pro se filed a PCRA petition seeking reinstatement of his direct 

appeal rights nunc pro tunc. The PCRA court appointed Corrie Woods, Esquire, 

to represent Appellant and Attorney Woods subsequently filed an amended 

PCRA petition. On May 7, 2020, the PCRA court granted Appellant’s petition 

and reinstated his direct appeal rights. On March 30, 2021, this Court affirmed 

Appellant’s judgment of sentence.

4

 See Commonwealth v. Gilmore, 251 

A.3d 1269 (Pa. Super. 2021) (non-precedential decision). On December 7, 

2021, the Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal. See Commonwealth v. Gilmore, 268 A.3d 1075 (Pa. 

2021).

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2 The Honorable Valarie Costanzo presided over Appellant’s non-jury trial and 

all subsequent proceedings.

3 35 P.S. §§ 780-113(a)(30), 780-113(a)(32), and 780-113(a)(16), 

respectively. 

4 On direct appeal, Appellant challenged the sufficiency and weight of the 

evidence. We found the former claim meritless, and the latter waived because 

Appellant did not preserve it at sentencing or in a timely post-sentence 

motion.
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On February 7, 2022, Appellant pro se filed the instant PCRA petition. 

The PCRA court again appointed Attorney Woods to represent Appellant. On 

July 6, 2022, Appellant filed an amended PCRA petition asserting that his trial 

counsel had been ineffective for failing to object to: (1) testimony regarding 

an “owe sheet”

5 as speculative, hearsay, and violative of the best evidence 

rule; (2) the admission of the “owe sheet” itself because the Commonwealth 

failed to disclose it in discovery; and (3) the presentation of the testimony of 

Alexandria Moltz. 

The Commonwealth filed an answer to Appellant’s petition, after which, 

on November 22, 2022, the PCRA court issued a notice of intent to dismiss 

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. 

Appellant did not file a response to the Rule 907 notice. However, on 

December 8, 2022, Attorney Woods filed a “Motion to Appoint Bradley[6]

Counsel.” In the motion, Attorney Woods stated that Appellant “respectfully 

requests that the undersigned be permitted to withdraw and that he be 

appointed [Bradley] counsel so that he may investigate and pursue any 

claims of ineffective assistance of PCRA counsel.” Motion to Appoint Bradley

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5 Appellant explains in his amended petition that an “owe sheet” is a 

“document containing names and numbers” constituting “a ledger of credit 

extended for drugs.” Amended Petition, 7/6/22, at 3.

6 Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). In Bradley, our 

Supreme Court held that “a PCRA petitioner may, after a PCRA court denies 

relief, and after obtaining new counsel or acting pro se, raise claims of PCRA 

counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.” 

261 A.3d at 401.
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Counsel, 12/8/22, at ¶ 8. Appellant did not allege any specific claims of PCRA 

counsel’s ineffectiveness in the motion. The PCRA court took no action on the 

motion.

On December 14, 2022, the PCRA court denied Appellant’s PCRA 

petition. 

This timely appeal followed. On January 12, 2023, the PCRA court 

ordered Appellant to file a Pa.R.A.P. 1925(b) statement. In lieu of doing so, 

however, Attorney Woods filed a statement indicating that Appellant:

does not presently raise any errors complained of on appeal, but 

instead intends to file an application for relief in the Superior Court 

seeking the appointment of counsel to vindicate his right to the 

effective assistance of postconviction counsel as contemplated by 

our Supreme Court’s decision to Commonwealth v. Bradley [].

Statement in Lieu of Concise Statement of Errors Complained of on Appeal, 

2/1/23. On February 6, 2023, the PCRA court filed a Rule 1925(a) opinion 

directing this Court to its Rule 907 notice for its reasons for denying

Appellant’s petition.

On March 3, 2023, Appellant filed in this Court an Application for 

Remand for Appointment of Bradley Counsel, which this Court granted. On 

remand and after a hearing, the PCRA court appointed Joseph Zupancic, 

Esquire, to represent Appellant. 

Following his appointment, Attorney Zupancic did not file an application 

to file a Rule 1925(b) statement nunc pro tunc. Accordingly, to date, Appellant 

has not filed a Rule 1925(b) statement raising allegations of PCRA court error 

with respect to the denial of his petition. 
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Nevertheless, on appeal, Appellant raises three issues challenging the 

dismissal of his PCRA petition and claims that his initial PCRA counsel was 

ineffective for failing to assert a claim that trial counsel was ineffective for not 

properly preserving a weight of the evidence challenge. 

A.

Before we can address the merits of Appellant’s first three issues, we 

must determine with Appellant waived any such review by failing to raise them 

in a court-ordered Rule 1925(b) statement. 

It is axiomatic that “[i]ssues not included in the Statement and/or not 

raised in accordance with the provisions of this paragraph [] are waived.” 

Pa.R.A.P. 1925(b)(4)(vii). Furthermore, whenever counsel “takes any action 

that wholly deprives his or her client of the right to appellate review of 

collateral claims, counsel will be deemed to be ineffective per se.” 

Commonwealth v. Parrish, 224 A.3d 682, 701 (Pa. 2020).

Rule 1925(c) provides that, where counsel in a criminal matter has been 

per se ineffective for failing to file a court-ordered Rule 1925(b) statement, 

we “may remand for appointment of new counsel, the filing [and] service of a 

Statement nunc pro tunc, and the preparation and filing of an opinion by the 

judge.” Pa.R.A.P. 1925(c)(3); Parrish, 224 A.3d at 692, 702.
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After review, we find that Attorney Zupancic entirely deprived Appellant 

of his right to appeal the denial of his PCRA petition.

7

 Accordingly, we remand 

this matter to the PCRA court for the appointment of new counsel within 20

days from the date of this Memorandum. New counsel shall file a Rule 1925(b) 

or Rule 1925(c)(4) statement within 30 days of appointment. We further 

order the trial court to file its Rule 1925(a) opinion within 30 days that new 

PCRA counsel files the Rule 1925(b) or Rule 1925(c)(4) statement. 

Thereafter, Appellant shall file a supplemental appellate brief within 30 days 

from the date that the PCRA court files its opinion. The Commonwealth shall 

have 30 days from the date the Appellant files his supplemental appellate brief 

to file a brief in response.

B.

In his final issue, Appellant asserts that first PCRA counsel was 

ineffective for failing to assert that trial counsel was ineffective for failing to 

properly preserve and raise the issue of whether the guilty verdicts were 

against the weight of the evidence through post-trial motions and/or on 

appeal. Appellant’s Brief at 24-29. He, thus, raises a layered ineffectiveness 

claim.

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he 

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7 Attorney Woods also rendered per se ineffective assistance of counsel by 

filing the Statement in Lieu of Concise Statement of Errors Complained of on 

Appeal instead of a Rule 1925(b) or Rule 1925(c)(4) statement.
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burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To

satisfy this burden, the appellant must plead and prove by a preponderance 

of the evidence that: (1) the underlying claim has arguable merit; (2) no 

reasonable basis existed for counsel’s actions or failure to act; and (3) there 

is a reasonable probability that the outcome of the challenged proceeding 

would have been different absent counsel’s error. Commonwealth v. 

Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the 

test will result in rejection of the appellant’s claim. Id.

To establish the prejudice prong, the petitioner must prove a reasonable 

probability that the outcome of the relevant proceedings would have been 

different but-for counsel’s action or inaction. Commonwealth v. Busanet, 

54 A.3d 35, 46 (Pa. 2012). Importantly, “counsel cannot be deemed 

ineffective for failing to raise a meritless claim.” Commonwealth v. Fears, 

86 A.3d 795, 804 (Pa. 2014).

“Where a petitioner alleges multiple layers of ineffectiveness, he is 

required to plead and prove, by a preponderance of the evidence, each of the 

three prongs of ineffectiveness relevant to each layer of representation.” 

Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022). “In 

determining a layered claim of ineffectiveness, the critical inquiry is whether 

the first attorney that the defendant asserts was ineffective did, in fact, render 

ineffective assistance of counsel. If that attorney was effective, then 

subsequent counsel cannot be deemed ineffective for failing to raise the 
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underlying issue.” Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. 

Super. 2010).

Where an appellant raises a claim of PCRA counsel ineffectiveness for 

the first time on appeal, this Court has “the ability to grant or deny relief on 

straightforward claims, as well as the power to remand to the PCRA court for 

the development of the record.” Bradley, 261 A.3d at 403. We will remand 

“where there are material facts at issue concerning [claims challenging 

counsel’s stewardship] and relief is not plainly unavailable as a matter of 

law[.]” Id. at 402 (citation omitted). Additionally, we are mindful of the 

“general rule” that “a lawyer should not be held ineffective without first having 

an opportunity to address the accusation in some fashion.” Commonwealth 

v. Colavita, 993 A.2d 874, 895 (Pa. 2010), overruled on other grounds, 

Bradley, 261 A.3d at 390.

In support of his contention that both prior PCRA and trial counsel were 

ineffective Appellant asserts that his underlying weight of the evidence claim 

has merit. In particular, he argues that both he and Ms. Moltz had equal 

access to the apartment where police found the drugs, police did not find any 

drugs on Appellant, and the Commonwealth did not introduce any evidence 

that Appellant was involved in drug trafficking. Appellant’s Brief at 28-29. He 

further argues that the evidence was as incriminating of Appellant as it was of 
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Ms. Moltz or any number of other guests who had access to the residence.

8

 

Id. at 29. He concludes, therefore, that “the evidence in this matter was so 

ephemeral that it should have shocked the conscience of the court.” Id.

Following our review of the record, we determine that remand is 

necessary for further development of the record of Appellant’s layered 

ineffective assistance of counsel claim. Our analysis must begin with a 

determination of trial counsel’s effectiveness. Because initial PCRA counsel 

did not raise a claim that trial counsel had been ineffective in failing to 

preserve Appellant’s weight of the evidence claim, the record does not contain 

trial counsel’s testimony as to his reasons for not preserving this claim on 

direct appeal. Trial counsel’s testimony is necessary to determining his 

effectiveness. Without counsel’s testimony regarding the reasons for his 

omission, we are unable to determine if trial counsel was effective. Since we 

cannot determine trial counsel’s effectiveness, we are unable to review initial 

PCRA counsel’s effectiveness. 

For this reason, we remand the matter to the PCRA court for further 

development of the record. The PCRA court shall hold a supplemental hearing 

and conduct further proceedings as necessary to address Appellant’s claim 

that initial PCRA counsel was ineffective for failing to raise a claim that trial 

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8 To the extent that Appellant’s framing of this issue also implicates the 

sufficiency of the evidence in support of Appellant’s convictions, as noted 

above, Appellant raised this claim on direct appeal and this Court has already 

found that it lacked merit. 
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counsel was ineffective for not preserving Appellant’s weight of the evidence 

claim. 

E.

Case remanded for additional proceedings consistent with this decision. 

Panel jurisdiction retained.