J-S37007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2915 EDA 2018

Appeal from the PCRA Order Entered August 23, 2018

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

No(s): CP-51-CR-000915-2011

BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 24, 2019

Ronald Davis appeals from the August 23, 2018 order denying his 

petition for relief under the Pennsylvania Post-Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-45. We affirm.

This Court previously summarized the underlying facts of this case as 

follows:

[O]n July 7, 2008, around 6:20 p.m., [the Philadelphia Police 

Department] received a phone call for a report of a shooting at 

2050 Gerritt Street in South Philadelphia. Upon arrival, the officer 

located victim, Freddie Mears (“the victim”), who was suffering 

from a gunshot wound and lying on the living room floor of a 

house. The victim was awake and responsive, but not [able to]

provide any flash information at that time. The victim was shot in 

the buttock[s] and was transported by Medic to Jefferson Hospital 

for [treatment of] the gunshot wound. The officer wrote in his 75-

48 police paperwork that the victim had stated at that time that 

he was shot from behind by an unknown person.

At trial, the victim . . . unequivocally testified that Appellant was 

the shooter, and explained why he was reluctant to tell police who 
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shot him and why he chose not to identify Appellant at the 

preliminary hearing. The victim first admitted that he has in the 

past been convicted of forgery, burglary, and possession of a 

controlled substance. When the shooting occurred in 2008, he 

worked as a “handyman” in the neighborhood by turning on gas, 

electric, water, and cable for people who had their services shut 

off. On July 7, 2008, the victim received a phone call from 

Appellant requesting that the victim turn on Appellant’s electric. 

The victim told Appellant he could not do it at that time because 

he was busy. During the conversation, the victim retorted, “If you 

can’t wait, get somebody else to do it.” The victim believed that 

Appellant took this comment as a sign of disrespect and asked the 

victim, “Well, where are you at?” The victim told him, “I’m on 20th

and Gerritt,” which was a friend’s house. When the victim was 

finished working at his friend’s house, he was standing outside 

that location when he notice[d] Appellant drive through the block 

in a truck. Appellant then came back around the block, this time 

as the passenger in the truck, and the truck drove up to the next 

hundred block of Gerritt Street. Appellant got out of the truck and 

walked up to the victim. The victim asked, “Yo, what’s going on?” 

Appellant pulled a silver gun out of his pants. The victim 

questioned, “Oh, you going to pull a gun out on me?” The victim 

then turned around, whereupon Appellant shot him in his buttock. 

Appellant ran, jumped in the truck, and the truck pulled off. The 

victim walked back to his friend’s house, and told him “I been 

shot. Call the cops.” The police and ambulance came.

Candidly, the victim admitted that he did have heroin in his 

system when he was shot, but testified that he had a clear head 

when questioned by [a detective] at Jefferson Hospital. The victim 

did not initially tell [the detective] who shot him because he was 

going to “take care of matters in his own hands.” Nevertheless, 

at the time of the initial statement, the victim did describe 

Appellant and his age. Later in the same statement, the victim 

admitted that he knew who shot him, . . . . The victim told the 

[d]etective that he would be able to identify Appellant if he saw 

him again.

. . . .

At the preliminary hearing, the victim refused to identify 

Appellant, but explained at trial that he had lied at the preliminary 

hearing because he still wanted to take matters into his own 

hands. 
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Commonwealth v. Davis, 159 A.3d 595 (Pa.Super. 2016) (unpublished 

memorandum at 2-4) (internal brackets omitted for clarity) (“Davis I”). 

After the preliminary hearing at which the victim refused to directly 

identify Appellant, the victim made a phone call to his wife confirming that he 

was planning to take personal retaliatory action against Appellant. Id. at 3. 

However, “the victim [later] explained at trial, ‘I know if I did take matters 

into my own hands, you know, I probably would have been in jail for the rest 

of my life.’” Id. This phone call was later presented as evidence by the 

Commonwealth to explain the evolution of the victim’s identification of 

Appellant. Id.

At the conclusion of a jury trial on February 27, 2012, Appellant was 

convicted of aggravated assault, violation of the Pennsylvania Uniform 

Firearms Act, and possession of an instrument of crime. Following the 

reinstatement of his direct appellate rights, nunc pro tunc, this Court affirmed 

Appellant’s judgment of sentence, and on June 5, 2017, our Supreme Court 

denied Appellant’s petition for allowance of appeal. See Davis I, supra., 

appeal denied, 169 A.3d 565 (Pa. 2017). On June 15, 2017, Appellant timely 

filed a pro se PCRA petition, alleging various claims for relief. PCRA counsel 

was appointed, but on October 10, 2017, he submitted a no-merit letter 

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court

ordered PCRA counsel to file an amended no-merit letter explicitly addressing 
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PCRA counsel’s communications with Appellant and the details of his 

investigation. PCRA counsel complied, identifying a single potentiallymeritorious issue: “Trial counsel was ineffective by failing to listen to audio 

evidence of a recorded phone conversation prior to the start of trial which 

would have lead a reasonable counsel to advise the petitioner to accept the 

guilty plea.” See Amended No-Merit Letter, 12/12/17, at 7.

On April 24, 2018, the PCRA court held an evidentiary hearing at which 

Appellant testified via video conference. On May 21, 2018, a second 

evidentiary hearing was held at which trial counsel testified in-person, and at 

which Appellant was present. Thereafter, this discrete issue was also 

extensively briefed by both Appellant and the Commonwealth. On August 23, 

2018, the PCRA court denied Appellants’ PCRA petition via order. A proof of 

service attached to that order indicates that the PCRA court sent a copy of the 

order to counsel for both Appellant and the Commonwealth on the same day. 

On October 5, 2018, Appellant’s counsel filed a notice of appeal styled as a 

“1925(b) Statement.” On October 16, 2018, counsel filed an amended notice 

of appeal styled as a “Notice of Appeal From PCRA Decision.”

Before turning to the merits of Appellant’s claim, we must assess 

whether we have jurisdiction to entertain this appeal. Pursuant to the 

Pennsylvania Rules of Appellate Procedure, Appellant’s notice of appeal was 

due on or before September 24, 2018. See Pa.R.A.P. 903(a) (notice of appeal 

shall be filed within 30 days after the entry of the order from which the appeal 
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is taken); see also 1 Pa.C.S. § 1908 (whenever the last day of the appeal 

period falls on a weekend or on any legal holiday, such day shall be omitted 

from the computation of time). Appellant’s notice of appeal was not filed until 

October 5, 2018, at the earliest. Ordinarily, such a failure to lodge a timely 

notice of appeal would result in immediate quashal of this appeal. See

Pa.R.A.P. 903(a); Commonwealth v. Crawford, 17 A.3d 1279, 1282 

(Pa.Super. 2011) (quashing untimely appeal from denial of PCRA petitions). 

However, the record before us reveals that the PCRA court did not adequately 

comply with the service requirements set forth at Pa.R.Crim.P. 908(E), which 

requires that “when the defendant is not present in open court, the judge, by 

certified mail, return receipt requested, shall advise the defendant of the right 

to appeal from the final order disposing of the petition and of the time limits 

within which the appeal must be filed.” 

Thus, because Appellant was not present in open court when the PCRA 

court denied his petition, the PCRA court was required to provide Appellant 

with certified notice of his appellate rights under Rule 908. The PCRA court 

failed to do so. In relevant part, the proof of service attached to the PCRA 

court’s order indicates only that copies of the August 23, 2018 order were sent 

to counsel for Appellant and the Commonwealth via non-certified, first-class 

mail. Furthermore, the clerk of courts did not make an appropriate notation 

in the PCRA docket concerning the date of service for the PCRA court’s order. 

See Pa.R.Crim.P. 114(C)(2)(c). This lack of notation complicates matters, as 
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there appear to be multiple copies of the relevant proof of service attached to 

the August 23, 2018 order in the certified record. The first is dated 

contemporaneously with the original order, the second is dated October 9, 

2018, and the third is dated October 10, 2018. These serial proofs of service 

leave lingering questions regarding when the order denying Appellant’s PCRA 

petition was actually transmitted by the PCRA court, and those questions are 

not susceptible to easy answers based on the record before us. 

In these circumstances, we decline to quash Appellant’s appeal as 

untimely due to the PCRA court’s failure to follow the directives of Rule 908. 

See Commonwealth v. Meehan, 628 A.2d 1151, 1155 (Pa.Super. 1993) 

(“[W]e cannot say with certainty that the PCRA court’s failure to follow the 

directives of Rule [908] had no effect on appellant’s ability to perfect his 

appeal since he was incarcerated . . . .”). Although we are cognizant of the 

proscriptions of Pa.R.A.P. 105(b), which prevents this court from enlarging

“the time for filing a notice of appeal,” we are of the settled opinion that the 

PCRA court’s service oversight, combined with the clerk’s notation 

irregularities under Rule 114, constitute a breakdown in the trial court’s 

processes, such that we may address Appellant’s otherwise untimely appeal. 

See Commonwealth v. Khalil, 806 A.2d 415, 420-21 (Pa.Super. 2002) (“We 

are unable to ignore the failure of the trial court to inform Appellant of his 

appeal rights, and we are constrained to find that it was a breakdown in the 

processes of the trial court that cause Appellant’s untimely appeal.”).
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Turning to the substance of Appellant’s appeal, he raises a single issue 

for our review: 

Did the PCRA court err in denying Appellant’s amended motion for 

[PCRA] relief where his counsel of record was ineffective by failing 

to listen to audio evidence of a recorded phone conversation prior 

to the start of trial which would have lead a reasonable counsel to 

advise the petitioner to accept the guilty plea?

Appellant’s brief at 8. Our scope and standard of review in this context 

is well-established under Pennsylvania law: “In PCRA proceedings, an 

appellate court’s scope of review is limited by the PCRA’s parameters; since 

most PCRA appeals involve mixed questions of fact and law, the standard of 

review is whether the PCRA court’s findings are supported by the record and 

free of legal error.” See Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 

2009). With specific reference to Appellant’s claims, we presume that counsel 

is effective, and Appellant bears the burden of proving otherwise. See

Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). In order to 

prevail on his claims of attorney ineffectiveness, Appellant must establish

that: (1) the underlying claim has arguable merit; (2) no reasonable basis 

existed for counsel’s actions or failure to act; and (3) the defendant has shown 

that he suffered prejudice as a result of counsel’s lapse (i.e., there is a 

reasonable probability that the result of the proceeding would have been 

different but for counsel’s oversight). See Bennett, supra at 1195. If 

Appellant’s claim of ineffectiveness fails under any element of this test, we 

may dispose of it on the basis of that prong, alone. See Commonwealth v. 

Albrecht, 720 A.2d 693, 701 (Pa. 1998).
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Appellant’s claim revolves around a recorded telephone conversation, in 

which the victim, who was incarcerated at the time the phone call was placed,

admitted to his wife that his inability to identify Appellant at the preliminary 

hearing was a lie calculated to afford the victim an opportunity for vigilante 

retaliation, i.e., “street justice”. N.T. Trial, 2/24/12, at 125-29. In various 

submissions to both this Court and the PCRA court, Appellant has couched this 

claim in terms that assail trial counsel for allegedly failing to review this audio 

recording at all prior to trial. However, such recriminations are little more 

than misdirection: based upon our review of the certified record and 

testimonies, all parties appear to agree that trial counsel did review the atissue recording ahead of trial. See N.T. Evidentiary Hearing, 4/24/18, at 9-

10 (Appellant conceding that trial counsel either listened to the tape or 

reviewed a transcript before the first day of trial); N.T. Second Evidentiary 

Hearing, 5/21/18, at 10 (trial counsel stating that he listened to the call prior 

to trial).

Contrary to Appellant’s averments, trial counsel not only listened to the 

audio recording before trial, but also explicitly discussed: (1) the potential 

impact that this evidence would have on Appellant’s defense at trial, which 

primarily relied upon misidentification; and (2) the potential for Appellant to 

accept a favorable plea deal from the Commonwealth based on this new 

evidence. See N.T. Evidentiary Hearing, 4/24/18, at 36-37 (Appellant stating 

that trial counsel advised him to take the Commonwealth’s plea offer on two 
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separate occasions); N.T. Evidentiary Hearing, 5/21/18, 6-12 (trial counsel 

detailing his discussion of the recorded call with Appellant).

More accurately stated, Appellant’s claim on appeal is not that trial 

counsel failed to listen to the at-issue audio recording. Rather, Appellant’s 

complaint is that trial counsel rendered ineffective assistance by failing to play 

the actual recording of the tape for Appellant before trial. See Appellant’s 

brief at 10 (“[A]ppellant contends that a competent counsel would have made 

arrangements to play the recorded phone call so that Appellant could hear the 

actual contents of the call and not rely on counsel’s second hand recounting 

of the contents.”). Appellant argues that hearing the actual recording would 

have persuaded him to accept the Commonwealth’s plea offer,

1 and that trial 

counsel’s failure to play it for him somehow rendered Appellant’s refusal to 

enter a guilty plea “unknowing” or “involuntary” for the purposes of his 

ineffectiveness claim. See Commonwealth v. Rathfon, 899 A.2d 365, 369 

(Pa.Super. 2006) (“A criminal defendant has the right to effective counsel 

during a plea process as well as during trial. . . . The voluntariness of the plea 

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1

 In relevant part, the Commonwealth offered Appellant a term of four to ten 

years on all charges, set to run concurrently to a separate sentence of five to 

ten years that Appellant was serving at the time (i.e., Appellant would have 

served no additional jail time). After rejecting this offer, Appellant was 

ultimately sentenced to consecutive terms of imprisonment of ten to twenty 

years for aggravated assault and two and one-half to five years for violating 

the Pennsylvania Uniform Firearms Act, and a concurrent term of 

imprisonment of two and one-half to five years for possessing an instrument 

of crime.
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depends on whether counsel’s advice was within the range of competence 

demanded of attorneys in criminal cases.”).

The PCRA court concluded that the claim did not merit relief because 

“[i]nforming [Appellant] of the contents of the tape and the implications for

trial was sufficient to enable [Appellant] to make an informed, voluntary and 

intelligent decision regarding whether to change his mind, forego trial and 

accept the plea offer.” Trial Court Opinion, 8/20/18, at 1 n.1. We discern no 

abuse of discretion or error of law in the PCRA court’s denial of Appellant’s 

petition. 

From a factual standpoint, Appellant himself testified that he rejected 

trial counsel’s entreaties to accept the Commonwealth’s plea offer on multiple 

occasions. See N.T. First Evidentiary Hearing, 4/24/18, at 9-10, 36-37; N.T. 

Second Evidentiary Hearing, 5/21/18, 6-10.2 Furthermore, the record 

similarly establishes that Appellant had full knowledge regarding the content 

and implications of the audio recording prior to trial,

3 and still chose to forego 

the plea offer in the hope of defeating the charges at trial based on the 

inconsistencies in the victim’s testimony. Id.

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2

 Although trial counsel could not recall explicitly suggesting that Appellant 

accept the Commonwealth’s proffered plea, Appellant recalled such 

conversations taking place on two separate occasions. See N.T. Evidentiary 

Hearing, 4/24/18, at 36-37.

3

 Appellant first became aware of the at-issue audio recording approximately 

ten months before trial. See N.T. Evidentiary Hearing, 4/24/18, at 7. 

Thereafter, trial counsel testified that he discussed the phone call and its 

potential consequences at least two weeks before trial. See N.T. Evidentiary 

Hearing, 5/21/18, at 7.
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Trial counsel advised Appellant about the content of the audio recording

and discussed the potential impact upon the case, and approached Appellant 

two separate times regarding the plea offer from the Commonwealth. 

Appellant offers no explanation how hearing the recording directly would have 

led to a different result than the one he chose based upon indirect knowledge 

of the contents of the recording. Accordingly, Appellant has failed to convince 

us that the PCRA court erred and that relief is due. Commonwealth v. 

Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/19