J-S38026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREEK AZIZ MULDROW 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1054 EDA 2022

Appeal from the PCRA Order Entered March 3, 2022

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

No(s): CP-39-CR-0002755-2015

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

CONCURRING MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 4, 2023

I agree with the Majority decision. I write separately to address a 

procedural issue that remains unresolved in our law. In Commonwealth v. 

Bradley, 261 A.3d 381, 401 (Pa. 2021), 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.” This decision ensured that 

defendants would have competent counsel through the entirety of their legal 

proceedings, including a first, counseled PCRA petition. 

In Commonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) the 

high court expanded on Bradley, noting that when a defendant raises 

ineffectiveness of PCRA counsel for the first time on appeal, a remand to the 

PCRA court may be necessary when there are “material facts at issue 

concerning claims challenging counsel’s stewardship and relief is not plainly 
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unavailable as a matter of law.” The court also stated that Rule of Appellate 

Procedure 302(a) which provides that “issues no raised in the trial court are 

waived and cannot be raised for the first time on appeal” does not pertain to 

this scenario. Id. 

Absent from these decisions, however, is how or exactly when a PCRA 

petitioner must raise the issue of PCRA counsel’s ineffectiveness. Notably, in 

Parrish, the petitioner filed a pro se amended 1925(b) concise statement of 

issues on appeal. Writing for the majority, Justice Donahue found that Parrish 

“adequately raised and preserved his layered claim of the ineffective 

assistance of trial and initial PCRA counsel by raising it at the first opportunity 

to do so, specifically in his [Rule] 1925(b) Statement and in his brief filed with 

[the Supreme Court] in this appeal.” Parrish, 273 A.3d at 1002. 

Here, the Appellant did not raise the issue until the filing of his appellate 

brief. Since our high court in Bradley and Parrish held the petitioner must 

raise the issue of PCRA counsel’s ineffectiveness “at the first opportunity to do 

so,” and since the Commonwealth did not claim that Appellant waived his 

claim by not raising it sooner (i.e., in his original or an amended 1925(b) 

statement), I believe Appellant satisfied the requirement by raising it for the 

first time in his appellate brief. Compare Commonwealth v. Womack, 

2022 WL 17099016 (Pa. Super. 2022) (non-precedential decision) (agreeing 

with the Commonwealth’s waiver argument when the petitioner did not raise 

his claim of PCRA counsel’s ineffectiveness in his Rule 1925(b) statement, but 

rather, for the first time in his appellate brief).
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I realize that the issue of PCRA’s counsel’s ineffectiveness may rise not 

only at the proceeding in the PCRA court, but also during the appeal of the 

PCRA petition. As such, the “earliest possible opportunity” may vary 

depending on the circumstances. I caution defendants and their counsel to

be wary of this and not delay in raising the issue; otherwise, the issue may 

be waived.

Judge Sullivan joins the concurring memorandum.