J-S05023-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDRE BRANCH-SAMUELS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 131 WDA 2022

Appeal from the PCRA Order Entered June 21, 2021

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

No(s): CP-02-CR-0006189-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.: FILED: APRIL 18, 2023

Andre Branch-Samuels appeals from the order, entered in the Court of 

Common Pleas of Allegheny County, dismissing his petition filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After 

careful review, we vacate the order and remand for further proceedings. 

On April 1, 2016, Dontae Thompson, while driving his vehicle, was 

fatally shot multiple times by someone driving a white Ford Focus. Police 

recovered two surveillance videos, which captured the shooting. Relying on 

this evidence, detectives identified and arrested Branch-Samuels. BranchSamuels was charged with first-degree murder,1 carrying a firearm without a 

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1 18 Pa.C.S.A. § 2501(a).
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license,2tampering with or fabricating physical evidence,3 and possession of 

a firearm prohibited.4 

On November 8, 2017, a jury convicted Branch-Samuels on the charges 

of first-degree murder, carrying a firearm without a license, and tampering 

with or fabricating physical evidence.5 On January 10, 2018, the court 

sentenced Branch-Samuels to life imprisonment for first-degree murder and 

to a consecutive forty-to-eighty months of incarceration for carrying a firearm 

without a license.6 

Branch-Samuels filed a post-sentence motion, which the court denied 

on March 20, 2018. Branch-Samuels filed a timely notice of appeal. On July 

26, 2019, this Court affirmed the judgment of sentence. See

Commonwealth v. Branch-Samuels, 548 WDA 2018 (Pa. Super. filed July 

26, 2019) (unpublished memorandum decision). Branch-Samuels filed a 

petition for allowance of appeal, which our Supreme Court denied on March 

24, 2020. 

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2 Id. § 6106(a)(1).

3 Id. § 4910(1).

4 Id. § 6501(a)(1).

5 The charge of possession of a firearm prohibited was nolle prossed. 

6 Branch-Samuels received no further penalty for the tampering with evidence 

conviction. 
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Branch-Samuels filed his first PCRA petition on December 11, 2020, in 

which he alleged after-discovered evidence in the form of a new witness, 

Tijuan Marquis Brown. In response, the Commonwealth filed an answer, and, 

on April 13, 2021, the PCRA court gave notice of its intent to dismiss under 

Pa.R.Crim.P. 907. The PCRA court dismissed this petition on June 21, 2021. 

Branch-Samuels filed a notice of appeal on July 21, 2021, and the trial court 

granted a petition for extension of time to file a Pa.R.A.P. 1925 concise 

statement of errors complained of on appeal, which Branch-Samuels filed on 

October 12, 2021. The PCRA court issued an opinion on October 28, 2021. 

On November 4, 2021, this Court dismissed the appeal for failure to file a 

docketing statement. On December 22, 2021, Branch-Samuels filed a second 

PCRA petition seeking the reinstatement of his collateral appellate rights nunc 

pro tunc, alleging a breakdown in court proceedings.7 The PCRA court granted 

that petition and reinstated Branch-Samuels' collateral appellate rights nunc 

pro tunc on December 23, 2021. On January 24, 2022, Branch-Samuels filed 

a notice of appeal to this Court. Both Branch-Samuels and the PCRA court 

have complied with Rule 1925. 

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7 On July 26, 2021, after his first notice of appeal was filed, Branch-Samuels 

obtained new counsel to represent him on appeal. Counsel entered his 

appearance; however, Branch-Samuels’s new counsel did not receive any 

correspondence from this Court, which resulted in a failure to file the aforementioned docketing statement and, thus, a breakdown in the operation of 

the Court. All correspondence had been sent to Branch-Samuels’ previous 

PCRA counsel. 
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Branch-Samuels raises five issues for our consideration: 

1. Whether Branch-Samuels is entitled to relief based on after[-

]discovered evidence indicating that [] Brown would testify that 

Branch-Samuels was not the shooter[.] 

2. Whether PCRA counsel provided ineffective assistance of counsel by 

not challenging trial counsel’s failure to object to the jury instruction 

regarding taped inconsistent statements by Jenea Price[.] 

3. Whether PCRA counsel provided ineffective assistance of counsel for 

not challenging trial counsel’s failure to make a timely objection that 

Detective Judd Emery was nonresponsive, and failure to request a 

curative instruction or that the testimony be stricken from the 

record[.] 

4. Whether PCRA counsel provided ineffective assistance of counsel by 

not challenging trial counsel’s failure to object to the 

Commonwealth’s closing argument when the prosecution 

commented that Shawn Yancey and Todd Kenney were 

Commonwealth witnesses that became unavailable, implying BranchSamuels had something to do with their unavailability? 

5. Whether PCRA counsel provided ineffective assistance of counsel for 

failing to challenge trial counsel’s failure to fully understand what 

evidence was given to trial counsel concerning the video footage of 

Elmore Square? 

Brief for Appellant, at i-ii (reworded for clarity). 

Preliminarily, we observe that Branch-Samuels has raised his ineffective 

assistance of PCRA counsel claims for the first time on appeal, and that the 

Honorable Jill E. Rangos, in her opinion, has requested that we remand the 

matter for a hearing on these claims. See PCRA Court Opinion, 3/24/22, at 

6. Specifically, the PCRA court found the allegations to “provide more than 

mere ‘boilerplate assertions of PCRA counsel’s ineffectiveness,’” and concluded 

that remand is necessary to further develop the record to determine if they 
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have merit. Id. Additionally, Judge Rangos found that Branch-Samuels’ afterdiscovered evidence claim was meritless because the testimony from Brown, 

who would have testified that Branch-Samuels was not the shooter, merely 

served to impeach two Commonwealth witnesses. Id. at 5. Furthermore, the 

court determined that Brown’s testimony would not have affected the outcome 

of trial because it would have been considered in the context of the entirety 

of the Commonwealth’s case which, as noted by this Court in BranchSamuels, supra, was supported by corroborative evidence. Id. 

Branch-Samuels raises his ineffective assistance of counsel claims for 

the first time on appeal. Accordingly, we must determine whether they have 

been waived. Recently, our Supreme Court has permitted “petitioner[s] to 

raise claims of ineffective assistance of PCRA counsel at the first opportunity 

[after obtaining new counsel or acting pro se], even if on appeal.” 

Commonwealth v. Bradley, 261 A.3d 381, 402 (Pa. 2021). Instantly, 

Branch-Samuels challenges his PCRA counsel’s failure to challenge his trial 

counsel’s ineffective assistance. See Brief for Appellant, at 15-18. 

Additionally, as we noted supra, Branch-Samuels is now represented by new 

counsel. Therefore, pursuant to our Supreme Court’s holding in Bradley, 

Branch-Samuels has properly raised these claims for our review. See 

Bradley, supra.

Next, we turn to whether remand is proper in this case. The absence of 

a developed record requires this Court to engage in fact-finding, which is not 
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an appellate court’s function. Commonwealth v. Shaw, 247 A.3d 1008, 

1017 (Pa. 2021). The PCRA court is “the appropriate—and, indeed, the only—

forum for the evidentiary and factual development” of PCRA claims. Id., 

quoting Commonwealth v. Koehler, 229 A.3d 915, 937 (Pa. 2020). 

Additionally, our Supreme Court in Bradley acknowledged that remand may 

be proper in certain cases where ineffectiveness claims are raised on appeal 

in the first instance: 

In some instances, the record before the appellate court will be 

sufficient to allow for disposition of any newly-raised 

ineffectiveness claims. However, in other cases, the appellate 

court may need to remand to the PCRA court for further 

development of the record and for the PCRA court to consider such 

claims as an initial matter. Consistent with our prior case law, to 

advance a request for remand, a petition would be required to 

provide more than mere boilerplate assertions of PCRA counsel’s 

ineffectiveness. . .; however, where there are material facts at 

issue concerning [claims challenging counsel’s stewardship] and 

relief is not plainly unavailable as a matter of law, the remand 

should be afforded[.]

Bradley, 261 A.3d at 402. 

In his brief, Branch-Samuels addresses each of the three prongs of the 

ineffectiveness of counsel test,8 but he has not had the opportunity to obtain 

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8 To successfully claim ineffective assistance of counsel, a defendant must 

prove the following: (1) a defendant must show his claim to be of arguable 

merit; (2) that defense counsel had no reasonable basis for undertaking or 

failing to undertake the act or omission in question; and (3) that there is a 

reasonable probability that but for the act or omission in question the outcome 

of the proceeding would have been different. Commonwealth v. Douglas, 

645 A.2d 226, 230-31 (Pa. 1994). 
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prior counsel’s testimony regarding the “strategic basis” for their actions. See 

Brief for Appellant, at 27; see also Douglas, supra. Likewise, as noted 

above, the PCRA court has not had the opportunity to hold a hearing on the 

issues and has requested that we remand because these claims appear to be 

more than boilerplate assertions of ineffectiveness. See PCRA Court Opinion, 

3/24/22, at 6; Pa.R.Crim.P. 907(1).

We conclude that the record before us is insufficient to allow for 

disposition of the ineffectiveness claims that Branch-Samuels raises. 

Accordingly, we agree with Judge Rangos, and we remand this case to the 

PCRA court for Branch-Samuels to create an evidentiary record as it relates to 

his ineffectiveness claims.9 See Bradley, supra; Koehler, supra.

Order vacated; case remanded with instructions. Jurisdiction 

relinquished. 

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9 Regarding Branch-Samuels’ after-discovered evidence claim, we decline to 

address it at this time. If Branch-Samuels’ ineffectiveness claims are found 

to have merit and, a new trial granted, he may be permitted to present Brown 

as a witness. Therefore, ruling on the after-discovered evidence claim at this 

juncture is premature and, quite possibly, moot. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/18/2023