J-S07006-20 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALIK BENNETT 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 217 EDA 2019

Appeal from the PCRA Order Entered December 28, 2018

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

No(s): CP-51-CR-0314291-2003

BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.* 

MEMORANDUM BY NICHOLS, J.: FILED APRIL 17, 2020

Appellant Malik Bennett appeals pro se from the order denying, after 

an evidentiary hearing, his second petition under the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On appeal, Appellant argues that the 

PCRA court erred by not granting a new trial based on after-discovered 

evidence, specifically an affidavit from witness Myleek Douthcy. He also 

contends James F. Berardinelli, Esq. (PCRA Counsel), did not effectively 

argue the claim before the PCRA court. We vacate and remand with 

instructions, as set forth below.

We state the facts as previously set forth by this Court:

On June 1, 2009, following a jury trial before [the trial court], 

Appellant was found guilty of first degree murder, carrying a 

 

* Retired Senior Judge assigned to the Superior Court.
J-S07006-20 

- 2 -

firearm on a public street, and possessing an instrument of crime 

(PIC). That same day, Appellant was sentenced to the 

mandatory term of life in prison. 

On June 9, 2009, Appellant filed post-sentence motions, which 

were denied by the Court of Common Pleas on October 6, 2009. 

Appellant filed a timely notice of appeal. The Superior Court 

affirmed Appellant’s judgment of sentence on April 13, 2011. On 

June 6, 2011, Appellant filed an “Application for Leave to File a 

Petition for Permission to Appeal out of Time,” and on January 3, 

2012, our Supreme Court denied application for permission to 

file petition for allowance of appeal nunc pro tunc. The Supreme 

Court’s order specifically stated that the application was denied 

“without prejudice to petitioner to file a Post Conviction Relief 

Act petition in the Court of Common Pleas of Philadelphia County 

requesting reinstatement of his allocator rights nunc pro tunc.”

On May 1, 2012, Appellant filed a timely PCRA petition. 

Appellant raised multiple issues in his first PCRA petition, one of 

which was appellate counsel’s ineffectiveness for failing to file a 

requested petition for allowance of appeal. Following an 

evidentiary hearing on January 11, 2013, the Court of Common 

Pleas reinstated Appellant’s right to petition for allowance of 

appeal nunc pro tunc, and denied the other claims raised by 

Appellant. Subsequently, the Court of Common Pleas 

acknowledged that the other claims should instead have been 

dismissed without prejudice, and the Superior Court agreed. 

Thereafter, our Supreme Court received Appellant’s petition for 

allowance of appeal and denied it. 

On June 16, 2014, Appellant filed an amended PCRA petition, reraising the other original claims that were raised in his earlier 

PCRA petition and adding two new claims.[1] The Commonwealth 

 

1

In relevant part, Appellant claimed trial counsel was ineffective by not 

playing a tape recording of a 911 call, which, in Appellant’s view, would have 

supported his theory of multiple shooters. Commonwealth v. Bennett, 

1418 EDA 2015, 2016 WL 5001415, *12 (Pa. Super. filed July 11, 2016) 

(unpublished mem.), appeal denied, 166 A.3d 1237 (Pa. 2017). Appellant 

claimed that the caller in the 911 tape said “they’re outside shooting. The 

bar just let out, and they’re ju...it’s like the OK corral out there,” suggesting 

“more than one person was firing shots.” Id. at *13. The Bennett Court, 

(Footnote Continued Next Page)
J-S07006-20 

- 3 -

filed a motion to dismiss on November 13, 2014, and Appellant 

filed a response to the Commonwealth’s motion to dismiss on 

January 28, 2015. Having reviewed the pleadings and 

conducted an independent review, the PCRA court determined 

that an evidentiary hearing pursuant to Pa.R.Crim.P. 90[7] was 

warranted on only one of Appellant’s claims. Following the 

evidentiary hearing on May 14, 2015, the PCRA court dismissed 

Appellant’s claim in open court, and dismissed the remainder of 

Appellant’s claims in a written Order that same day. This timely 

appeal followed.

On February 9, 2003, Appellant and Ramone Randolph 

(Randolph) attended a birthday party at Neil’s R & R Hideaway 

(Bar) at 33rd and Reed Streets in South Philadelphia. The party 

ended in the early morning hours, and, like the other attendees, 

Appellant and Randolph left the Bar and lingered outside. At 

approximately 2:20 a.m., as Randolph was sitting in the driver’s 

seat of his car, Appellant approached the car and shot six times 

through the closed driver’s side window.[2] Four of the shots hit

(Footnote Continued From Prior Page) 

in resolving this claim, stated that trial counsel had a reasonable basis for 

not playing the tape because:

Not one witness at trial even suggested there was an additional 

shooter, nor did the ballistics evidence support such a claim.

Five eyewitnesses testified that they heard gunshots and saw 

petitioner, wearing a red, white, and blue jacket, run from the 

victim’s car or run through the Park immediately after the shots 

were fired . . . .

See Bennett, 2016 WL 5001415 at *13 (citation omitted). “After hearing . 

. . five eyewitnesses who, in sum, directly or circumstantially saw petitioner 

flee the scene with a gun in his hand, counsel’s decision not to alert the jury 

that the setting on that street corner was comparable to the Wild West was 

a reasonable one.” Id. (citation omitted). Appellant’s other relevant PCRA 

claim was that trial counsel was ineffective by failing to object to the 

admission of the autopsy report. Id. at *8 (citation omitted). We add that 

“the autopsy report . . . did not indicate that the decedent was not shot at 

close range.” See id. at *12 n.22 (citation omitted).

2 At trial, the chief medical examiner testified that the gun was fired “at least 

two or three feet away from” the victim. N.T. Trial, 5/28/09, at 159. 
J-S07006-20 

- 4 -

Randolph, who later died at the Hospital of the University of 

Pennsylvania.

There was a large number of people who were either standing 

outside the Bar or sitting in their cars near the Bar when the 

shooting occurred. Ronnetta Williams was standing in the 

middle of the street when she heard the gunshots and looked 

up. She saw Appellant running away from the car with a gun in 

his hand. She then approached the car and saw that Randolph 

had been shot. Another partygoer, Teahonda Wilkerson, was 

also standing outside the Bar when the shooting occurred. She 

heard the shots, looked up, and saw Appellant run away from 

Randolph’s car and run through Stinger Park (Park), which was 

across the street from the Bar. Tanisha Woods had also 

attended the party and was sitting in a car outside the Bar with 

her sister-in-law and heard the shots. Moments after the 

shooting, she got a call on her cell phone that her brother, 

Anthony Woods, was chasing Appellant as he fled the scene of 

the shooting. Ms. Woods ran up the block and saw her brother 

in pursuit of Appellant. Ms. Woods saw a gun in Appellant’s 

hand and was afraid that Appellant would shoot her brother, so 

she yelled to him to stop pursuing Appellant, and he complied. 

Appellant was also seen running down the street by two 

witnesses who had not attended the party. Raymond White, 

Randolph’s cousin, was standing outside of his mother’s house 

near the Bar and across the street from the Park; he heard the 

shots coming from the direction of the Bar and saw a male 

wearing a red, white, and blue jacket and wearing a hat running 

through the Park immediately afterwards. The victim’s nephew, 

Khayree Gay, was also walking near the Bar and saw a man 

wearing a baseball cap and jacket running through the Park.

Ballistics evidence showed that six shots were fired, all of which 

were fired from the same gun. Four of these bullets hit 

Randolph; two shots hit Randolph’s upper back, and two hit his 

left arm. The gun was never recovered.

Bennett, 1418 EDA 2015, 2016 WL 5001415, at *1-*2 (some formatting 

altered). Subsequently, this Court affirmed the denial of Appellant’s first 
J-S07006-20 

- 5 -

PCRA petition, and our Supreme Court denied Appellant’s petition for 

allowance of appeal on February 22, 2017.

On March 22, 2017, Appellant, acting pro se, filed a second PCRA 

petition.3 Appellant claimed after-discovered evidence, specifically that on 

February 24, 2017, Appellant received an affidavit containing new 

exculpatory evidence. Appellant’s PCRA Pet., 3/22/17, at 3. According to 

Appellant, the affidavit by Myleek Douthcy established Appellant’s innocence 

and that the Commonwealth committed a Brady violation by suppressing

Douthcy’s statement. The PCRA court appointed PCRA Counsel, who filed an 

amended PCRA petition reiterating the claims raised in Appellant’s pro se 

petition.

The PCRA court held an evidentiary hearing on August 13, 2018, at 

which Douthcy testified in relevant part as follows:

[PCRA Counsel]. Can you explain where you were at the time Mr. 

Randolph was shot?

[Douthcy]. I was standing outside of the bar on the side by the 

telephone booth, and where he was at -- he was in the street in 

his car and it was parked. And I was watching out, and I heard 

the shots. And I heard [Appellant] say, Get down. He was like a 

few feet over from me. That’s when I just got down and 

everyone started running off.

N.T. PCRA Hr’g, 8/13/18, at 6-7. 

 

3 The PCRA court mistakenly labeled this petition as Appellant’s third. See

PCRA Ct. Op. at 9.
J-S07006-20 

- 6 -

Douthcy testified that he did not see the shooter. Id. at 9. Douthcy

also testified that when the police interviewed him, he told the police that 

Appellant was not involved. Id. at 10-11. Douthcy explained that after 

learning Appellant was arrested, he did not inform Appellant or his counsel 

about his testimony because he was living in Williamsport at that time. 

Subsequently, the PCRA court asked Douthcy from whom did he hear that 

Appellant was arrested, and Douthcy responded as follows:

Through the streets that [Appellant] got arrested for it, and they 

said that he came and got him and they had let him go. So after 

that, it wasn’t my concern. And then in 2015[4] or ’14, I bumped 

into him, [Appellant], in SCI Dallas. And I said to him, “What 

are you here for?” He let me know that he was incarcerated for 

the homicide for that day. And I was like, “How?” Because my

understanding was that they said you wasn’t -- it wasn’t you 

that did it and I know that he wasn’t there. I didn’t see you do 

anything, I just heard you say, get down, and everything.

Id. at 11-12.

On December 28, 2018, the PCRA court denied Appellant’s PCRA 

petition. Appellant timely filed a pro se notice of appeal and a timely pro se

court-ordered Pa.R.A.P. 1925(b) statement, which challenged, among other 

items, the PCRA court’s denial and PCRA Counsel’s advocacy. At that point 

in time, PCRA Counsel had not yet withdrawn from representing Appellant.

 

4 We note Appellant’s first PCRA petition was pending in 2014, and the PCRA 

court dismissed it on May 14, 2015.
J-S07006-20 

- 7 -

Subsequently, PCRA Counsel filed a motion to withdraw in this Court,

which asserted that he had not been retained for appeal. This Court denied 

the motion to withdraw without prejudice to have PCRA Counsel refile his 

motion in the PCRA court. PCRA Counsel subsequently filed a motion to 

withdraw with the PCRA court, which granted it. Order, 4/25/19. On May 3, 

2019, Appellant filed a pro se application for leave to file a supplemental 

Rule 1925(b) statement, which the PCRA court denied.

The PCRA court prepared a Rule 1925(a) opinion reasoning that 

Douthcy’s testimony was “inconsistent with the physical and testimonial 

evidence introduced at the trial.” PCRA Ct. Op. at 7. The PCRA court 

summarized inconsistencies between Douthcy’s affidavit and his testimony at 

the PCRA hearing. Id. at 8. Accordingly, the PCRA concluded that 

Douthcy’s testimony was not credible.5 Id.

Appellant raises the following issues on appeal, which we reordered:

1. Whether the PCRA Court erred and denied petitioner his 

federal and state constitutional rights to due process of . . . law 

by dismissing [A]ppellant’s PCRA [petition] after conducting an 

evidentiary hearing and appointment of counsel, only to 

determine that on appeal, the appellant proceed pro se or with 

retained counsel and that no counsel is to be appointed, which is 

in violation of Pa. R. Crim. P. Rule 904 (E)(2). Where the 

[court’s] determination is not supported by the record and free 

of legal errors[?]

 

5 The PCRA court’s opinion addressed other issues that we do not summarize 

because of our disposition.
J-S07006-20 

- 8 -

2. Whether initial PCRA counsel rendered ineffective assistance 

of counsel based on his improper/presentation of testimony from 

after-discovered exculpatory witness Myleek [Douthcy] during an 

evidentiary hearing conducted on August 13, 2018?

3. Whether the PCRA Court erred and denied appellant his 

federal and state constitutional rights to due process of law by 

dismissing [A]ppellant’s initial PCRA petition without providing 

[A]ppellant a Notice of Intent to dismiss pursuant to Pa.R. 

Crim.P. 907?

4. Whether in reviewing the property of the PCRA filing, it was 

an abuse of discretion for the PCRA Court to determine that 

appellant could not obtain relief pursuant to invoking the 

applications of title 42 Pa. C.S.A. 9543(a)(2)(vi), where 

appellant presented after-discovered [exculpatory] evidence and 

met the terms announced [in] Com v. Small; 2018 Pa Lexis 

3761 (2018)?

Appellant’s Brief at 3.

Initially, we address whether Appellant is entitled to appellate counsel 

for his second PCRA petition. In Commonwealth v. Jackson, 965 A.2d 

280 (Pa. Super. 2009), the defendant filed a second PCRA petition, and the 

PCRA court appointed counsel for an evidentiary hearing. Jackson, 965 

A.2d at 282. The PCRA court denied relief and “relieved [PCRA counsel] of 

his appointment.” Id. The defendant, acting pro se, appealed. Id. at 281. 

The Jackson Court addressed whether the defendant was entitled to 

appointed appellate counsel for his second PCRA petition. Id. at 283. It 

first quoted Pa.R.Crim.P. 904(D) and (F)(2):

(D) On a second or subsequent petition, when an unrepresented 

defendant satisfies the judge that the defendant is unable to 

afford or otherwise procure counsel, and an evidentiary hearing 

is required as provided in Rule 908, the judge shall appoint 

counsel to represent the defendant.
J-S07006-20 

- 9 -

* * *

(F) When counsel is appointed,

* * *

(2) the appointment of counsel shall be effective throughout the 

post-conviction collateral proceedings, including any appeal

from disposition of the petition for post-conviction collateral 

relief.

Pa.R.Crim.P. 904(D), (F)(2) (emphasis in original). 

The Jackson Court reasoned as follows:

At first glance, it appears that Rule 904(D) limits the 

appointment of counsel to only the evidentiary hearing. 

However, our courts have consistently interpreted Rule 

904(F)(2) and its predecessors, Rule 904(E) (2003), Rule 904(D) 

(2001), and Rule 1504(d) (2001), to extend the right of 

representation throughout the appeals process. The 

appointment of counsel throughout the litigation of a first 

petition is mandatory even when it appears that the petition is 

untimely or the petition does not present a cognizable claim. 

The appointment of counsel is considered necessary in order to 

determine whether the petitioner could invoke a timeliness 

exception or raise a cognizable claim.

We find that the same logic extends to cases in which counsel is 

appointed pursuant to Rule 904(D). If the appointment of 

counsel is deemed necessary for purposes of conducting an 

evidentiary hearing, then the petitioner requires the assistance 

of counsel throughout the litigation of the issue. Such litigation 

necessarily includes the appeals process.

Jackson, 965 A.2d at 283-84 (citations and footnotes omitted). The 

Jackson Court therefore remanded for appointment of appellate counsel 

and noted counsel may file a Rule 1925(b) statement nunc pro tunc to 

preserve any issues. See id. at 284.
J-S07006-20 

- 10 -

Although our research has not identified any reported case citing

Jackson, we note that a party may cite to non-precedential cases for their 

persuasive value to the extent those cases were filed after May 1, 2019. 

See Pa.R.A.P. 126(a)-(b). Most recently, in Commonwealth v. Davis, 525 

EDA 2019, 2019 WL 4899219 (Pa. Super. Oct. 4, 2019) (unpublished 

memo.), the PCRA court appointed PCRA counsel for the defendant’s second 

PCRA petition. Davis, 2019 WL 4899219 at *1. Following the PCRA court’s 

denial of relief, the defendant, acting pro se, appealed. Id. at *2. The 

Davis Court noted that appointed PCRA counsel never filed a petition to 

withdraw and did not enter her appearance before this Court. Id.

Citing to Rule 904(F)(2) and Jackson, the Davis Court stated: 

When counsel is appointed to represent a PCRA petitioner, “the 

appointment of counsel shall be effective throughout the postconviction collateral proceedings, including any appeal from 

disposition of the petition.” Pa.R.Crim.P. 904(F)(2). This Court 

has held that Rule 904(F)(2) applies not just in cases where 

counsel is appointed as of right for a first-time PCRA petitioner, 

but also when counsel is appointed by the court for an 

evidentiary hearing on a second PCRA petition. Jackson, 

supra.

Id. Based in part on this reasoning, and because of the procedural posture 

in the case, which we do not recap here for brevity, the Davis Court vacated 

the order dismissing the defendant’s second PCRA petition and remanded to 

have the PCRA court resolve whether the defendant wished to be 

represented by appellate counsel or proceed pro se on appeal. Id. at *3.
J-S07006-20 

- 11 -

In Commonwealth v. Corbett, 2040 EDA 2017, 2019 WL 4273820

(Pa. Super. Sept. 10, 2019) (unpublished memo.), the Court addressed a 

similar situation to the instant case, except involving privately-retained 

counsel for a second PCRA petition. Corbett, 2019 WL 4273820 at *1. In 

Corbett, the defendant’s privately-retained counsel filed a second PCRA 

petition, the PCRA court held an evidentiary hearing, and the PCRA court 

denied relief. Id. The defendant, acting pro se, filed an appeal. Id. 

Following a procedural exchange that we do not summarize, the defendant’s

privately-retained counsel filed a motion to withdraw with this Court, which 

granted it. Id. 

The Corbett Court addressed whether the defendant was “properly 

proceeding pro se” on appeal. Id. (stating, “Before reaching the merits of 

[the defendant’s] claims on appeal, we must determine first whether he is 

properly proceeding pro se.”).

For second and subsequent petitions, a petitioner is not entitled 

to the appointment of counsel unless the petitioner proves he “is 

unable to afford or otherwise procure counsel, and an 

evidentiary hearing is required[.]” Pa.R.Crim.P. 904(D). In such 

an instance, counsel must be appointed, and appointed counsel 

shall continue representation throughout the PCRA proceedings, 

including any appeal therefrom. Pa.R.Crim.P. 904(F)(2).

Although this was [the defendant’s] second PCRA petition, he 

may have had a rule-based right to counsel, as the PCRA court 

determined that an evidentiary hearing was required. However, 

because [the defendant] retained private counsel prior to filing 

his petition, the PCRA court did not determine whether [the 

defendant] was unable to afford or otherwise procure counsel, 

which would have entitled him to appointed counsel pursuant to 

Pa.R.Crim.P. 904(D).
J-S07006-20 

- 12 -

Id. at *2. The Corbett Court continued: “Although this Court granted 

[privately-retained counsel’s] petition to withdraw, if [the defendant] is 

unable to afford or otherwise procure counsel, his rule-based right to counsel 

for his second PCRA petition remains in effect on appeal. See Pa.R.Crim.P. 

904(D) and (F)(2).” Id. The Corbett Court remanded “to the PCRA court 

to conduct any proceedings it deem[ed] necessary to determine whether 

[the defendant was] entitled to appointed counsel for this appeal.” Id.

The PCRA court shall file an opinion with this Court within 30 

days as to one of the following: (1) If the PCRA court determines 

that [the defendant] was entitled to appointed counsel on his 

second PCRA petition, the PCRA court shall appoint new counsel.

The P[C]RA court shall additionally order appointed counsel to 

file a Pa.R.A.P. 1925(b) statement on [the defendant’s] behalf.

(2) If [the defendant] is entitled to appointed counsel, but 

indicates he would like to proceed pro se, the PCRA court shall 

conduct an on-the-record colloquy to ensure the decision to 

waive counsel is knowing, intelligent, and voluntary. See 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). (3) If 

[the defendant] is able to afford or otherwise procure counsel, 

but declines to do so, the PCRA court shall advise this Court and 

this appeal shall proceed accordingly.

Id.

Turning to the instant case, the PCRA court, identical to the PCRA 

court in Jackson, dismissed Appellant’s appointed counsel for Appellant’s 

second PCRA petition without appointing new appellate counsel. See

Jackson, 965 A.2d at 283-84 (relieving PCRA counsel of his appointment). 

Cf. Davis, 2019 WL 4899219 at *3 (noting defendant’s appointed counsel 

for his second PCRA petition never filed a petition to withdraw but 
J-S07006-20 

- 13 -

defendant, acting pro se, appealed); Corbett, 2019 WL 4273820 at *2

(noting this Court granted the defendant’s privately-retained PCRA counsel 

petition to withdraw, but that defendant, if unable to afford or obtain 

counsel, is still entitled to appointed appellate counsel under Rule 904(D) 

and (F)(2)). To paraphrase the Jackson Court, and in accord with other 

non-precedential decisions addressing this issue, we remand to the PCRA 

court for appointment of new PCRA appellate counsel, who may file a 

Pa.R.A.P. 1925(b) statement nunc pro tunc, unless Appellant wishes to 

proceed pro se. See Jackson, 965 A.2d at 283-84; accord Davis, 2019 

WL 4899219 at *3 (remanding to have PCRA court determine whether 

defendant wished to be represented by appointed counsel on appeal or 

proceed pro se); Corbett, 2019 WL 4273820 at *2 (remanding for further 

proceedings to establish whether the defendant should proceed pro se or 

with counsel). Should Appellant wish to proceed pro se, the PCRA court 

must hold a Grazier hearing and supplement the certified record with the 

notes of testimony from that hearing. See Corbett, 2019 WL 4273820 at 

*2. Any newly-appointed PCRA counsel must remain in the case until the 

final disposition of Appellant’s second PCRA petition. The PCRA court may 

file a new Rule 1925(a) opinion or rely on its prior opinion. Our 

Prothonotary is instructed to establish a new briefing schedule upon 

receiving notice from new appellate counsel unless Appellant is proceeding 

pro se.
J-S07006-20 

- 14 -

Case remanded with instructions. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/20