J-S21022-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL RILEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1818 EDA 2020

Appeal from the PCRA Order Entered August 28, 2020, 

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

No(s): CP-51-CR-0006088-2012

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 2, 2022

Appellant, Daniel Riley, appeals from the August 28, 2020 order 

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. This case returns to us after our 

Supreme Court vacated this Court’s original order of October 20, 2021, and 

remanded the matter for our reconsideration in light of Commonwealth v. 

Bradley, 261 A.3d 381 (Pa. 2021).1 We vacate the August 28, 2020 order 

and remand this case in accordance with this memorandum.

We previously summarized the procedural history as follows:

On September 16, 2015, following a jury trial, Appellant was 

convicted of one count each of first-degree murder (18 Pa.C.S.A. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See Commonwealth v. Riley, 2021 WL 4889254 (Pa. Super. Oct. 20, 

2021) (unpublished memorandum); see also Commonwealth v. Riley, 

2022 WL 1153274 (Pa. Apr. 19, 2022) (per curiam order) (slip copy).
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§ 2502), conspiracy to commit robbery (18 Pa.C.S.A. § 903), 

robbery (18 Pa.C.S.A. § 3701), carrying a firearm on a public 

street in Philadelphia, Pennsylvania (18 Pa.C.S.A. § 6108), and 

possessing an instrument of crime (18 Pa.C.S.A. § 907). 

Appellant was jointly tried with his co-defendant. The trial court 

immediately imposed the mandatory sentence of life in prison for 

the murder charge pursuant to 18 Pa.C.S.A. § 1102(a)(1). 

Appellant filed post-sentence motions, which the trial court denied 

on December 22, 2014. Appellant was represented at trial by 

Robert Dixon, Esquire.

On April 26, 2016, [this Court] affirmed Appellant's judgment of 

sentence. On August 22, 2016, [our] Supreme Court denied 

Appellant discretionary review. Appellant subsequently filed a pro 

se PCRA petition on March 27, 2017. Benjamin Cooper, Esquire 

was appointed to represent Appellant on August 21, 2017.

However, Todd M. Mosser, Esquire (“Attorney Mosser”), whom 

Appellant retained as private counsel, entered his appearance on 

behalf of Appellant on January 23, 2018. Attorney Mosser was 

assisted in his representation of Appellant by Catherine 

Hockensmith, Esquire (“Attorney Hockensmith”).

On July 12, 2018, Attorney Mosser filed a counseled amended 

PCRA petition raising two claims: 1) that trial counsel was 

ineffective for failing to investigate and call alibi witnesses; and 2) 

that the admission of [Appellant’s] non-testifying co-defendant's 

redacted statement violated the Confrontation Clause. On May 

24, 2019, Attorney Mosser, with leave of court, [further] amended 

the PCRA petition, raising the same two claims, but modifying the 

attorney certification regarding alibi witnesses that accompanied 

the petition.

On June 27, 2019, the PCRA court issued a notice pursuant to 

Pa.R.Crim.P. 907 of its intent to dismiss Appellant's PCRA petition 

without an evidentiary hearing (''Rule 907 Notice”) for the 

following reasons: 1) as to Appellant's first issue, Appellant failed 

to include certifications for his proffered alibi witnesses; and 2) as 

to Appellant's second issue, the same Confrontation Clause claim 

had been previously litigated in Appellant's direct appeal.

On July 17, 2019, Appellant filed an objection to the Rule 907 

Notice, requesting to amend his petition once again to cure the 

witness certification defect regarding his alibi witness claim.[FN1]

Appended to [Appellant’s proposed second amended PCRA]

petition was a signed “declaration” of a proffered alibi witness, 
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Appellant's brother's paramour, who was one of four alibi

witnesses that Appellant claimed trial counsel neglected to 

investigate and call as witnesses during his trial. No other 

certifications from other alibi witnesses were provided.

[Footnote 1] Although a second amended PCRA petition was 

attached to Appellant's [response to the PCRA court’s] Rule 

907 Notice, the PCRA court never granted counsel's request 

to file the second amended PCRA petition.

In response to Appellant's objection to the Rule 907 Notice, the 

PCRA court granted an evidentiary hearing on the sole claim that 

trial counsel was ineffective for failing to call Appellant's brother's 

paramour as an alibi witness. The hearing was originally 

scheduled for April 3, 2020, but due to the COVID-19 global 

pandemic, it was rescheduled for September 17, 2020. However, 

at a final pre-hearing conference on August 28, 2020, which was 

held to ensure that all parties would be ready to proceed with the 

evidentiary hearing, Attorney Hockensmith advised the PCRA 

court that the potential alibi witness [(Appellant’s brother’s 

paramour)] would not testify at the evidentiary hearing, and that 

Appellant was withdrawing the witness certification for that 

witness. Because no witness certifications for any other alibi

witnesses had been provided, the PCRA court dismissed the PCRA 

petition and cancelled the September 17, 2020 evidentiary

hearing.

On September 23, 2020, Appellant filed a notice of appeal.[FN2]

The PCRA court ordered Appellant to file a concise statement of 

errors complained of on appeal in accordance with Pa.R.A.P. 

1925(b). Appellant filed his Rule 1925(b) statement on November 

18, 2020, and the PCRA court subsequently filed its Rule 1925(a) 

opinion.

[Footnote 2] A review of the PCRA court docket statement 

demonstrates that on September 23, 2020, Attorney Mosser 

electronically filed a motion to withdraw as counsel for 

Appellant. That same day, Attorney Mosser also 

electronically filed a second document that was incorrectly 

identified as Appellant's notice of appeal. This second 

document was, in fact, a duplicate copy of Attorney Mosser's 

motion to withdraw as counsel for Appellant. In a March 26, 

2021 per curiam order, this Court issued a rule to show 

cause why Appellant's appeal should not be quashed for 

failure to file a timely notice of appeal. In an April 4, 2021 
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response to the rule to show cause order, Appellant's [new 

PCRA] counsel, Teri B. Himebaugh, Esquire (“Attorney 

Himebaugh”) averred that Attorney Mosser inadvertently 

attached the wrong document when he electronically filed 

the duplicate motion to withdraw that was inaccurately 

identified as Appellant's notice of appeal. Attorney 

Himebaugh stated that the Clerk of Courts for the Court of 

Common Pleas of Philadelphia County notified Attorney 

Mosser in January 2021, regarding the incorrect filing. Upon 

submitting a copy of the notice of appeal, Attorney Mosser 

understood that the filing error would be corrected by the 

Clerk of Courts. In an April 16, 2021 per curiam order, this 

Court discharged the rule of show cause and referred the 

issue to the merits panel.

This Court has long-held that,

while the Prothonotary, or the Clerk of Courts, must 

inspect documents that are sent for filing to ensure they 

are in the proper form, the power to reject such 

documents is limited to notifying the proper party that 

the document is defective so that the defect may be 

corrected through amendment or addendum.

Commonwealth v. Alaouie, 837 A.2d 1190, 1193 

(Pa. Super. 2003) (citation omitted). Here, the Clerk of 

Courts accepted Attorney Mosser's electronic filing, which 

was inaccurately identified as a notice of appeal, on 

September 23, 2020, but did not contact Attorney Mosser 

until January 2021, to advise that the notice of appeal was 

inadvertently omitted from counsel's filing. We find that the 

Clerk of Courts’ failure to promptly notify Attorney Mosser 

about his errant filing constituted a breakdown of the 

judicial system. Upon contact, Attorney Mosser provided 

the Clerk of Courts with a copy of the notice of appeal, which 

the Clerk of Courts accepted and dated as having been filed 

on September 23, 2020. Under these circumstances, we 

discern no basis upon which to disturb the [PCRA] court's 

determination that Attorney Mosser's attempt to file a notice 

of appeal on September 23, 2020, perfected this appeal.

Riley, 2021 WL 4889254, at *1-*2 (record citation, original formatting, and 

original brackets omitted).
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On October 20, 2021, this Court affirmed the August 28, 2020 order 

dismissing Appellant’s PCRA petition.2 Id. at *1. In so affirming, this Court 

held that: (1) Appellant waived his claim of ineffective assistance of trial 

counsel for failure to call Appellant’s brother and uncle as potential alibi

witnesses at trial because Appellant failed to assert a viable claim before the 

PCRA court and could not raise such a claim for the first time on appeal; and 

(2) under the then-current state of the law Appellant could not raise a claim 

challenging the performance of original PCRA counsel for the first time on 

appeal. Id. at *5, citing Commonwealth v. Santiago, 855 A.2d 682, 691 

(Pa. 2004), and *6, citing Commonwealth v. Shaw, 247 A.3d 1008, 1016 

(Pa. 2021). Appellant subsequently filed a petition for allowance of appeal 

with our Supreme Court. Our Supreme Court granted Appellant’s petition for 

allowance of appeal and vacated our October 20, 2021 order affirming the 

dismissal of Appellant’s PCRA petition. Riley, 2022 WL 1153274, at *1. Our 

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2 On appeal, Appellant raised the following issues for our review:

1. Were Appellant's constitutional rights under the Sixth and 

Fourteenth Amendments of the United States Constitution 

and Article I, Section 9 of the Pennsylvania Constitution 

violated by trial counsel's ineffective failure to investigate 

and call alibi witnesses, namely Appellant’s brother and his 

uncle, to testify at Appellant's trial?

2. Did PCRA counsel ineffectively fail to obtain statements from 

these available witnesses thereby causing the PCRA court to 

dismiss the petition asserting the underlying claim without 

a hearing?

Riley, 2021 WL 4889254, at *3 (brackets omitted).
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Supreme Court remanded this case to this Court for reconsideration of our 

disposition of Appellant’s claim of ineffective assistance of original PCRA 

counsel in light of Commonwealth v. Bradley, 261 A.3d 381 (2021).3 Riley, 

2022 WL 1153274, at *1.

On remand, Appellant raises the following issue for our review:

Was PCRA counsel ineffective pursuant to [Bradley, supra,] for 

failing to properly present a claim during the PCRA proceedings 

that trial counsel was ineffective in relation to investigating and 

calling alibi witnesses?

Appellant’s Brief at 3 (original formatting and extraneous capitalization 

omitted).

In addressing Appellant’s issue, we are mindful of our well-settled 

standard and scope of review of a PCRA court’s dismissal of a PCRA petition. 

Proper appellate review of a PCRA court’s dismissal of a petition is limited to 

the examination of “whether the PCRA court’s determination is supported by 

the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 

992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified record.” 

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations 

omitted). “This Court grants great deference to the findings of the PCRA court, 

and we will not disturb those findings merely because the record could support 

____________________________________________

3 We note that our Supreme Court’s decision in Bradley, supra, was handed 

down on October 20, 2021, the same date that this Court affirmed the order 

denying Appellant’s PCRA petition in the case sub judice.
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a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140 

(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s 

legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20 

(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

Appellant’s issue raises a claim for ineffectiveness of original PCRA 

counsel, Attorney Mosser, for failure to attach to the amended PCRA petition 

declarations from Appellant’s brother and uncle that satisfied the 

requirements of 42 Pa.C.S.A. § 9545(d)(1)(i).4 Appellant’s Brief at 23-27. 

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4 When a petitioner requests an evidentiary hearing, Section 9545(d)(1) 

states,

(d) Evidentiary hearing.--

(1) The following apply:

(i) Where a petitioner requests an evidentiary hearing, the 

petition shall include a certification signed by each intended 

witness stating the witness's name, address, date of birth[,]

and substance of testimony and shall include any documents 

material to that witness's testimony.

(ii) If a petitioner is unable to obtain the signature of a 

witness under subparagraph (i), the petitioner shall include 

a certification, signed by the petitioner or counsel, stating 

the witness's name, address, date of birth[,] and substance 

of testimony. In lieu of including the witness's name and 

address in the certification under this subparagraph, counsel 

may provide the witness's name and address directly to the 

Commonwealth. The certification under this subparagraph 

shall include any documents material to the witness's 

testimony and specify the basis of the petitioner's 

information regarding the witness and the petitioner's 

efforts to obtain the witness's signature. Nothing in this 

subparagraph shall be construed to contravene any 
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Implicit in Appellant’s ineffectiveness claim is the allegation that Attorney 

Mosser was also ineffective for failing to plead in the amended PCRA petition 

the substantive elements needed to support a claim that trial counsel was 

ineffective for failing to investigate and call Appellant’s brother and uncle as

potential alibi witnesses at trial.

Preliminarily, we must address whether Appellant is permitted to raise 

a claim challenging the performance of original PCRA counsel for the first time 

on appeal. Recently, our Supreme Court in Bradley, supra, held that “after 

a PCRA court denies relief, and after obtaining new counsel or acting pro se, 

[a petitioner may] raise claims of PCRA counsel’s ineffectiveness at the first 

opportunity to do so, even if on appeal.”5 Bradley, 261 A.3d at 401 (footnote 

omitted). The Bradley Court recognized that “a petitioner has a rule-based 

right to the appointment of counsel for a first PCRA petition” and, with that 

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applicable attorney-client privilege between the petitioner 

and postconviction counsel.

(iii) Failure to substantially comply with the 

requirements of this paragraph shall render the 

proposed witness's testimony inadmissible.

42 Pa.C.S.A. § 9545(d)(1) (emphasis added).

5 Prior to our Supreme Court’s decision in Bradley, supra, “the sole method 

by which a petitioner [could] challenge the ineffectiveness of his PCRA counsel 

[was] through the filing of a response to the PCRA court's [Pa.R.Crim.P.] 907 

dismissal notice.” Bradley, 261 A.3d at 386. Finding this Rule 907 procedure 

to be “deeply flawed,” the Bradley Court explicitly “abandon[ed the] Rule 907 

approach as the sole procedure for challenging PCRA counsel’s effectiveness.” 

Id. at 401.
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right, he is “entitled to the effective assistance of counsel.” Id. at 391-392 

(stating, “[t]he guidance and representation of an attorney during collateral 

review ensures that meritorious legal issues are recognized and addressed, 

and that meritless claims are abandoned”). In balancing a petitioner’s right 

to effective assistance of counsel and society’s interest in the efficient and 

final conclusion of criminal matters, our Supreme Court held that permitting 

“a petitioner to raise claims of PCRA counsel’s ineffectiveness at the first 

opportunity when represented by new counsel, even if on appeal, while not 

an ideal solution, accommodates these vital interests.” Id. at 401. The 

Bradley Court further stated that a claim of PCRA counsel ineffectiveness 

raised for the first time on collateral appeal did not violate the PCRA one-year 

jurisdictional time-bar because such a claim of PCRA counsel ineffectiveness 

“sprang” from the original, timely PCRA petition and did not constitute a 

second or subsequent petition. Id. at 402, 404 (rejecting “the notion that 

considering ineffectiveness claims on collateral appeal constitutes a prohibited 

serial petition, violating the PCRA's one-year [jurisdictional] time bar” 

(footnote omitted)).

To reiterate, on September 16, 2015, the trial court sentenced Appellant

to a mandatory term of life in prison. This Court affirmed Appellant’s judgment 

of sentence on April 16, 2016, and our Supreme Court denied Appellant’s 

petition for allowance of appeal on August 22, 2016. Appellant did not file a 

petition for writ of certiorari with the United States Supreme Court. Therefore, 

Appellant’s judgment of sentence became final on November 21, 2016, upon 
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expiration of the period of time for seeking discretionary review with the 

United States Supreme Court. U.S. Sup. Ct. R. 13(1) (stating, “A petition for 

a writ of certiorari seeking review of a judgment of a lower state court that is 

subject to discretionary review by the state court of last resort is timely when 

it is filed with the Clerk within 90 days after entry of the order denying 

discretionary review.”); see also 42 Pa.C.S.A. § 9545(b)(3) (stating, “a 

judgment becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review”).

Appellant’s court-appointed PCRA counsel filed a PCRA petition on March 

27, 2017. Because Appellant filed his first PCRA petition within one year of 

his judgment of sentence becoming final, his petition was timely filed. As 

such, Appellant is permitted to raise a claim challenging original PCRA 

counsel’s ineffectiveness for the first time on collateral appeal because he is 

currently represented by new PCRA counsel, to-wit Attorney Himebaugh, and 

his claim springs from a timely PCRA petition. Bradley, 261 A.3d at 401, 404.

In addressing Appellant’s claim of original PCRA counsel’s 

ineffectiveness, we are mindful that “[i]t is well-established that counsel is 

presumed effective, and to rebut that presumption, the PCRA petitioner must 

demonstrate that counsel's performance was deficient and that such 

deficiency prejudiced him.” Commonwealth v. Koehler, 36 A.3d 121, 132 

(Pa. 2012), citing Strickland v. Washington, 466 U.S. 668, 687-691 (1984). 
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In order to plead and prove a claim of ineffective assistance of counsel, a 

petitioner

must establish that the issue underlying the claim of 

ineffectiveness has arguable merit, that [] counsel's act or 

omission was not reasonably designed to advance the interests of 

the [petitioner], and that the [petitioner] was prejudiced - that is, 

but for counsel's errors, the outcome of the proceeding would 

have been different.

Bradley, 261 A.3d at 390 (citation omitted). “A claim of ineffectiveness will 

be denied if the petitioner's evidence fails to meet any of these prongs.” 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). In a layered claim 

of ineffectiveness in which a petitioner challenges PCRA counsel’s 

ineffectiveness to assert a claim of trial counsel’s ineffectiveness, the 

ineffectiveness of trial counsel is the “arguable merit” prong of the three-part 

ineffective assistance of counsel test. Commonwealth v. Reyes, 870 A.2d 

888, 896 (Pa. 2005) (stating that, proving the three-part ineffectiveness test 

as to trial counsel established the arguable merit prong as to PCRA counsel’s 

ineffectiveness); see also Commonwealth v. Parrish, 273 A.3d 989, 1003 

n.11 (Pa. 2022) (stating, “[w]here a petitioner alleges multiple layers of 

ineffectiveness, he[, or she,] 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”).

The first layer of Appellant’s claim is that trial counsel was ineffective 

for failing to interview and to call, at trial, three alibi witnesses, namely 

Appellant’s brother, his uncle, and his brother’s paramour. Appellant’s Brief 
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at 16. Appellant contends that he informed trial counsel that he was not 

present at the location of the shooting incident. Id. at 15. He further avers 

that he provided trial counsel with the names and contact information of the 

three aforementioned potential alibi witnesses, each of whom could 

corroborate that Appellant was at home on the night of the incident. Id. at 

15-16. Appellant argues that trial counsel was ineffective for failing to 

interview the three potential alibi witnesses and to call these witnesses at trial. 

Id. at 16.

The second layer of Appellant’s claim is that original PCRA counsel was 

ineffective for failing “to properly plead in the amended PCRA petition a claim 

that trial counsel was ineffective for failing to both investigate and call 

Appellant’s brother and uncle [] as potential alibi witnesses at trial.” Id. at 

25-26 (extraneous capitalization and emphasis omitted). In asserting this 

contention, Appellant relies on this Court’s prior statement that,

Although Appellant stated in his amended PCRA petition that he 

provided the names of his brother and his uncle to trial counsel as 

potential alibi witnesses, Appellant did not specifically aver that 

trial counsel's failure to call these two individuals as witnesses at 

trial constituted ineffective assistance. In other words, Appellant's 

amended PCRA petition did not plead the necessary substantive 

elements giving rise to an ineffectiveness claim for failure to call 

his brother or uncle as potential witnesses. Specifically, Appellant 

did not assert that either his brother or his uncle was available at 

the time of trial, that either individual was willing to testify on 

Appellant's behalf, or that the absence of either individual's 

testimony was prejudicial.

. . .

Because the amended PCRA petition failed to assert a viable claim 

for ineffective assistance based upon trial counsel's failure to call 
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Appellant's brother and uncle as potential alibi witnesses at 

trial,[FN5] Appellant cannot assert this claim for the first time on 

appeal. Consequently, Appellant waived this ineffectiveness 

claim, and we may not review it on appeal.

[Footnote 5] Moreover, the amended PCRA petition did not 

include a certification signed by Appellant's brother or his 

uncle, or a certification signed by, inter alia, Attorney 

Mosser, setting forth the witnesses’ names, addresses, 

dates of birth, and the substance of their proposed 

testimony. Therefore, any testimony by these individuals 

would have been inadmissible at an evidentiary hearing on 

Appellant's PCRA petition.

Riley, 2021 WL 4889254, at *4 (citations and footnote omitted). In light of

this Court’s prior statement, Appellant avers that original “PCRA counsel was 

ineffective for failing to obtain the necessary information from [Appellant’s 

brother and uncle] to enable [original PCRA counsel] to draft and file witness 

certifications and to amend the PCRA petition to cure any defects.”6 

Appellant’s Brief at 28-29 (footnote omitted). Appellant requests that this 

Court remand the case to the PCRA court for an evidentiary hearing on 

Appellant’s layered ineffectiveness claim. Id. at 35.

“Neglecting to call a witness differs from failing to investigate a witness 

in a subtle but important way.” Commonwealth v. Stewart, 84 A.3d 701, 

712 (Pa. Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014). “A claim that 

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6

In his appellate brief to this Court, Appellant set forth a summary of the 

substance of his brother’s and uncle’s potential exculpatory testimony. 

Appellant’s Brief at 16-21. We further note that Appellant attached copies of 

the investigative interviews of Appellant’s brother and uncle, which were 

signed and affirmed by the brother and uncle, as exhibits to his appellate brief. 

Id. at Exhibits RR2-RR12.
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trial counsel did not conduct an investigation or interview known witnesses 

presents an issue of arguable merit where the record demonstrates that 

counsel did not perform an investigation.” Stewart, 84 A.3d at 712. 

Moreover, “it can be per se unreasonable for [a] defense attorney to conduct 

no investigation into known witnesses[.]” Commonwealth v. Maldonodo, 

173 A.3d 769, 783 n.10 (Pa. Super. 2017) (en banc) (stating, “effective 

assistance of counsel requires a lawyer to undertake reasonable investigations 

or make reasonable decisions that render particular investigations 

unnecessary” (original quotation marks omitted)), appeal denied, 182 A.3d 

991 (Pa. 2018); see also Stewart, 84 A.3d at 712 (stating, “failure to 

prepare is not an example of forgoing one possible avenue to pursue another 

approach; it is simply an abdication of the minimum performance required of 

defense counsel” (citations, original quotation marks, and brackets omitted)).

[T]he value of [an] interview [of a potential alibi witness] is to 

inform [trial] counsel of the facts of the case so that he[, or she,]

may formulate strategy. Perhaps, after questioning these 

[potential] witnesses, [trial] counsel may have concluded that the 

best strategy was not to call them[.] However, no such claim of 

strategy can be attached to a decision not to interview or make 

an attempt to interview [potential alibi witnesses] prior to trial.

Stewart, 84 A.3d at 713, quoting Commonwealth v. Mabie, 359 A.2d 369, 

374-375 (Pa. 1976). In other words, if a petitioner pleads and proves that 

trial counsel did not investigate and interview known witnesses, the petitioner 

satisfied the “arguable merit” and “reasonable basis” prongs of the three-part 

test for ineffectiveness. As for the final element of the three-part test for 
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ineffectiveness, a petitioner is required to show prejudice; i.e.: but for trial 

counsel’s error, the outcome of the proceeding would have been different. 

Stewart, 84 A.3d at 712.

In contrast, "[a] failure to call a witness is not per se ineffective 

assistance of counsel for such [a] decision usually involves matters of trial 

strategy." Commonwealth v. Matias, 63 A.3d 807, 811 (Pa. Super. 2013)

(citation omitted), appeal denied, 74 A.3d 1030 (Pa. 2013). To establish 

ineffectiveness for failing to call a potential witness to testify at trial, the 

petitioner must prove that:

(1) the witness existed; (2) the witness was available to testify 

for the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was willing to testify 

for the defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair 

trial

Id. at 810-811 (citations omitted). To establish prejudice, the petitioner 

"must show how the [potential witness's] testimony would have been 

beneficial under the circumstances of the case" and "helpful to the defense" 

such that the absence of the testimony denied the petitioner a fair trial. Id.

at 811 (citation omitted); see also Commonwealth v. Chmiel, 889 A.2d 

501, 546 (Pa. 2005) (holding, "[t]rial counsel's failure to call a [potential 

witness] does not constitute ineffective assistance without some showing that 

the [potential] witness'[s] testimony would have been beneficial or helpful in 

establishing the asserted defense"), cert. denied, 549 U.S. 848 (2006). In 

other words, a petitioner pleads and proves an ineffectiveness claim for failure 
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to call a witness at trial when the petitioner establishes, inter alia, that no 

reasonable trial strategy could have supported the decision to withhold the 

witness at trial and the absence of the witness testimony denied the petitioner 

a fair trial.

In the instant case, the PCRA court did not conduct an evidentiary 

hearing because “there were no proffered alibi witnesses who could have 

lawfully testified at a hearing” in support of Appellant’s claim that trial counsel 

was ineffective for failing to investigate and to call certain alibi witnesses. 

PCRA Court Opinion, 12/15/20, at 8. The PCRA court explained that it 

dismissed Appellant’s petition without a hearing because Appellant failed to 

provide witness certifications pursuant to Section 9545(d)(1) as part of his 

PCRA petition and, as such, the potential alibi witnesses were barred from 

offering testimony in support of Appellant’s claim. Id. at 7, citing

Commonwealth v. Brown, 767 A.2d 576, 583 (Pa. Super. 2001). The PCRA 

court noted that while Appellant submitted a witness certification for his 

brother’s paramour and an evidentiary hearing was initially scheduled for the 

purpose of taking this person’s testimony, the evidentiary hearing was 

ultimately cancelled when original PCRA counsel withdrew the witness 

certification at a pre-hearing conference. PCRA Court Opinion, 12/15/20, at 

7-8. The PCRA court concluded that because Appellant was unable to provide 

evidence in support of this ineffective assistance of trial counsel claim, and in 

particular he was unable to provide the testimony of potential alibi witnesses, 

Appellant was unable to satisfy the three-part ineffectiveness test. Id. at 5-8. 
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As such, the PCRA court dismissed Appellant’s ineffectiveness of trial counsel 

claim as being without merit. Id. at 8.

This case presents a unique circumstance in which this Court, in order 

to review the dismissal of Appellant’s ineffectiveness of original PCRA counsel 

claim, must examine whether the underlying claim – the ineffectiveness of 

trial counsel for failure to investigate and call two potential alibi witnesses 

(Appellant’s brother and his uncle) – satisfied the three-part ineffectiveness 

test. Based upon the current record, and specifically in the absence of an 

evidentiary hearing, we are unable to review Appellant’s claim. As our 

Supreme Court in Bradley, supra, recognized, when allegations of PCRA 

counsel’s ineffectiveness are raised for the first time on appeal, an 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.” 

We find that development of the record in the case sub judice is necessary to 

provide Appellant, in the interest of fairness and justice, an opportunity to 

plead and prove his ineffectiveness claim.

Therefore, we vacate the August 28, 2020 order denying Appellant’s 

PCRA petition and remand this case to the PCRA court so that current PCRA 

counsel may file an amended PCRA petition that, inter alia, complies with 

Section 9545(d)(1) and sets forth a viable ineffectiveness claim.

7

 Thereafter 

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7

In its appellate brief, the Commonwealth advocates for the remand of the 

case sub judice to provide Appellant “an opportunity to carry his burden of 
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the PCRA court shall conduct an evidentiary hearing for the purpose of 

considering Appellant’s underlying claim of ineffectiveness of trial counsel.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/2/2022

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proving that [original] PCRA counsel was ineffective for not properly 

presenting a claim that trial counsel was ineffective for not calling [Appellant’s] 

brother and uncle as [potential] alibi witnesses [at trial]. Commonwealth’s 

Brief at 4.