J-A22027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN ALLEN MARTIN

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1428 WDA 2022

Appeal from the PCRA Order Entered December 5, 2022

In the Court of Common Pleas of Elk County Criminal Division at No(s): 

CP-24-CR-0000362-2019

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: February 23, 2024

Appellant, Brian Allen Martin, appeals from the December 5, 2022 order 

entered in the Court of Common Pleas of Elk County that denied his petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546. We affirm, in part, and vacate, in part, the December 5, 2022 

order, and remand this case in accordance with this memorandum.

1

The record demonstrates that, on January 22, 2020, a jury convicted 

Appellant of third-degree murder and recklessly endangering another person

____________________________________________

1 On November 2, 2023, the Commonwealth filed an application with this 

Court, requesting an extension of time in which to file a responsive brief in 

the instant appeal pursuant to Pennsylvania Rule of Appellate Procedure 

105(b). In light of our disposition herein, we deny the Commonwealth’s 

request as moot.

On December 18, 2023, Appellant filed pro se a motion for extraordinary relief, 

with this Court, requesting a stay of appellate proceedings and a remand to 

allow the PCRA court to address Appellant’s request for new PCRA counsel. In 

light of our disposition here, we deny Appellant’s motion as moot.
J-A22027-23

- 2 -

(“REAP”) following an incident at a local bar in Elk County in which Appellant 

shot the victim several times, while inside the establishment, and the victim 

later died.2 On March 2, 2020, the trial court imposed an aggregate sentence 

of 12 to 24 years’ incarceration.

3

 This Court affirmed Appellant’s judgment of 

sentence on November 15, 2021, and Appellant did not seek discretionary 

review with our Supreme Court. Commonwealth v. Martin, 268 A.3d 424, 

2021 WL 5294016 (Pa. Super. filed Nov. 14, 2021) (unpublished 

memorandum). As such, Appellant’s judgment of sentence became final on 

December 15, 2021. See 42 Pa.C.S.A. § 9543(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 the time for seeking the review”); see 

also Pa.R.A.P. 1113(a) (requiring a petition for allowance of appeal to be filed 

within 30 days after entry of the order of this Court to be challenged on 

review).

On March 31, 2022, Appellant filed pro se a PCRA petition, his first, as 

well as a memorandum of law in support thereof, raising twelve claims of 

ineffectiveness of trial counsel. PCRA counsel was appointed to represent 

Appellant. Counsel filed an amendment to Appellant’s pro se PCRA petition 

____________________________________________

2 18 Pa.C.S.A. §§ 2502(c) and 2705, respectively.

3 Appellant was sentenced to a term of 12 to 24 years’ incarceration for his 

third-degree murder conviction and to a concurrent term of 6 to 12 months’ 

incarceration for his REAP conviction.
J-A22027-23

- 3 -

on May 9, 2022, and an additional amendment to Appellant’s pro se PCRA 

petition on June 21, 2022.4 The Commonwealth filed a response to Appellant’s 

petition on July 11, 2022. On July 14, 2022, the PCRA court conducted an 

evidentiary hearing. Upon conclusion, the PCRA court permitted Appellant to 

submit a counseled memorandum of law in support of his petition within 30 

days of receipt of the hearing transcript. The PCRA court also permitted the 

Commonwealth to submit a response within 14 days of Appellant’s 

submission. N.T., 7/14/22, at 53.

On September 19, 2022, Appellant submitted pro se a memorandum of 

law in support of his petition. That same day, counsel for Appellant submitted 

a memorandum of law in support of the petition and attached, as an exhibit, 

____________________________________________

4 PCRA counsel did not file an amended PCRA petition but, rather, filed an 

amendment and an additional amendment to Appellant’s pro se PCRA petition 

that incorporated all of the allegations contained in Appellant’s pro se PCRA 

petition, as well as asserted new and additional allegations in support of 

Appellant’s ineffectiveness claims.

In the May 9, 2022 filing, PCRA counsel reiterated Appellant’s claim that trial 

counsel was ineffective for failing to request an “unreasonable belief” 

voluntary manslaughter jury instruction and to request that the offense be 

included on the verdict slip. See Amendments to Pro Se PCRA Petition, 

5/9/22.

In the June 21, 2022 filing, PCRA counsel asserted additional claims that trial 

counsel was ineffective for failing to call a witness and for failing to introduce 

medical evidence of injuries Appellant allegedly sustained on the night of the 

incident. See Additional Amendments to Pro Se PCRA Petition, 6/1/22.
J-A22027-23

- 4 -

Appellant’s pro se memorandum of law.5 The Commonwealth subsequently 

filed its response.

On November 10, 2022, Appellant filed pro se a motion for appointment 

of new PCRA counsel, alleging claims of ineffectiveness against then-current 

PCRA counsel pursuant to our Supreme Court’s decision in Commonwealth 

v. Bradley, 261 A.3d 381 (Pa. 2021).6 The PCRA court denied Appellant’s 

motion for appointment of new PCRA counsel on December 5, 2022, as having 

been untimely filed.

On December 5, 2022, the PCRA court dismissed Appellant’s petition. 

Appellant filed a counseled notice of appeal on December 7, 2022, and, on 

____________________________________________

5

It is well-established that a petitioner, such as Appellant, who is represented 

by counsel, typically, has no constitutional right to hybrid representation in 

either a PCRA court or an appellate court. See Commonwealth v. Ellis, 626

A.2d 1137, 1139 (Pa. 1993). When PCRA counsel is aware of a pro se filing

and subsequently adopts the pro se filing, however, the PCRA court may give 

force to the pro se filing without offending consideration of hybrid 

representation. See Commonwealth v. Mason, 130 A.3d 601, 671 (Pa. 

2015).

Thus, Appellant’s filing pro se of a memorandum of law in the case sub judice

constitutes hybrid representation. However, because PCRA counsel adopted 

Appellant’s pro se memorandum, as demonstrated by the attachment of the 

pro se filing as an exhibit to his own memorandum of law, we conclude that 

Appellant’s pro se filing does not offend the considerations of hybrid 

representation. Id.

6 Although Pennsylvania jurisprudence disfavors hybrid representation, as 

discussed supra, our Supreme Court’s decision in Bradley, as discussed in 

greater detail infra, permits a petitioner to file pro se a claim alleging 

ineffectiveness of PCRA counsel at the first opportunity available, even when 

represented by PCRA counsel who is the subject of the ineffectiveness claim.
J-A22027-23

- 5 -

December 13, 2022, the PCRA court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(b). On December 16, 2022, PCRA counsel filed a 

Rule 1925(b) statement.7 The PCRA court filed its Rule 1925(a) opinion on 

January 5, 2023, relying on its opinion that accompanied the December 5, 

2022 order dismissing Appellant’s petition.

On January 27, 2023, Appellant filed pro se, with this Court, a motion 

for appointment of new PCRA counsel pursuant to Bradley, supra.

8

 In a 

____________________________________________

7 PCRA counsel raised the following issues in the Rule 1925(b) statement:

1. [Appellant] asserts that the [PCRA] court erred in failing to 

find [Appellant’s] trial counsel ineffective for failing to 

request a jury instruction on “unreasonable belief” voluntary 

manslaughter (18 Pa.C.S.A. [§] 2503(b)), and failing to 

request that the crime of voluntary manslaughter be placed 

on the jury’s verdict slip[.]

2. Trial counsel’s failures as noted above had no reasonable 

basis designed to effectuate [Appellant’s] interests, and 

[Appellant] was prejudiced by trial counsel’s failures as 

there exists a degree of likelihood sufficient to undermine 

confidence in the outcome of the proceedings[.]

3. The [PCRA] court erred in failing to find [Appellant’s] trial 

counsel ineffective, and in thereby failing to grant 

[Appellant] a new trial[.]

Rule 1925(b) Statement, 12/16/22 (extraneous capitalization omitted).

8 Appellant’s pro se motion for the appointment of new PCRA counsel was 

timestamped as having been received by this Court on January 31, 2023. The 

postmark on the envelope Appellant used to mail his motion, however, reveals 

a postage cancellation stamp dated January 27, 2023. Pursuant to the 
J-A22027-23

- 6 -

February 7, 2023 per curiam order, this Court denied Appellant’s motion for 

appointment of new PCRA counsel without prejudice “for Appellant to seek the 

appointment of substitute counsel in the [PCRA] court.”9 On February 13, 

2023, PCRA counsel filed an appellate brief, and the Commonwealth 

subsequently filed its responsive brief on April 13, 2023.

On April 21, 2023, PCRA counsel filed with this Court a praecipe to 

withdraw as counsel for Appellant. In his request for permission to withdraw,

PCRA counsel attached a copy of an April 5, 2023 PCRA court order granting 

Appellant’s request for the appointment of new PCRA counsel without 

objection by the Commonwealth. On May 18, 2023, this Court, in a per curiam

order, granted original PCRA counsel’s request to withdraw and directed the 

prothonotary of this Court to enter the appearance of Appellant’s new PCRA 

counsel.

On June 8, 2023, new PCRA counsel filed a motion for a continuance 

with this Court, requesting “additional time to review the matter and 

potentially submit an amended brief.” Motion for Continuance, 6/8/23, at ¶2. 

In a June 12, 2013 per curiam order, this Court granted the request for a 

____________________________________________

“prisoner mailbox rule,” we deem Appellant’s motion for the appointment of 

new PCRA counsel as filed on January 27, 2023. See Commonwealth v. 

Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining that, pursuant to the 

“prisoner mailbox rule,” a document is deemed filed on the date an inmate 

deposits the mailing with prison authorities or placed it in the prison mailbox).

9

In the per curiam order, this Court did not explicitly remand the case to the 

PCRA court to permit Appellant to file a request for the appointment of new 

PCRA counsel. See Per Curiam Order, 2/7/23.
J-A22027-23

- 7 -

continuance.10 On October 4, 2023, new PCRA counsel submitted an appellate 

brief on behalf of Appellant.

New PCRA counsel raises the following issues for our review:

1. Was trial counsel ineffective, and [] Appellant prejudiced 

thereby, for failing to request a jury instruction on 

“unreasonable belief” voluntary manslaughter and failing to 

request that [this offense] be placed on the jury slip?

2. Was trial counsel ineffective, and [] Appellant prejudiced 

thereby, by failing to present testimony [and] medical 

records regarding [] Appellant’s physical condition at the 

time of the offense?

3. Was trial counsel ineffective, and [] Appellant prejudiced 

thereby, by failing to prepare [] Appellant in his [trial] 

testimony regarding the legal definition of “bodily injury”

and “serious bodily injury,[”] and in failing to conduct 

redirect examination regarding what [] Appellant meant [by 

his use of] the term “bodily harm[?”]

4. Was trial counsel ineffective, and [] Appellant prejudiced 

thereby, in failing to object to the [Commonwealth’s]

improper statements in [its] closing [remarks] that the 

decedent was defending the honor of a female bar patron?

Appellant’s Brief, 10/4/23, at 4.

Appellant’s first issue raises a claim that trial counsel provided 

ineffective assistance. Id. at 13-22. Specifically, Appellant alleges that trial 

counsel was ineffective for failing to request a jury instruction for 

“unreasonable belief” voluntary manslaughter and to request that the offense 

be included on the jury verdict slip. Id. Appellant argues that “[w]ithout the 

____________________________________________

10 In the per curiam order, this Court relinquished panel jurisdiction but

retained appellate jurisdiction. Per Curiam Order, 6/12/23.
J-A22027-23

- 8 -

benefit of a voluntary manslaughter instruction, the jury in the present case 

was left to believe that, if [Appellant fired] his weapon with the specific intent 

to kill, the only basis for not finding him guilty of either [first-degree murder 

or third-degree murder] was if he reasonably acted in self-defense.” Id. at 

19. Appellant contends that “[h]ad there been a jury instruction for 

[v]oluntary [m]anslaughter, [the] facts could have supported a jury

determination that [Appellant] had a belief, reasonable or unreasonable, that

shooting the decedent was necessary to defend himself.” Id. at 20. Appellant 

asserts that trial counsel had no reasonable basis for failing to request an 

“unreasonable belief” voluntary manslaughter instruction or to request that

the offense be included on the verdict slip. Id. Appellant further asserts that 

trial counsel lacked a reasonable basis in advising Appellant to forgo such an 

instruction or the inclusion of voluntary manslaughter on the verdict slip. 

Appellant thus concludes that he was prejudiced when the jury convicted him 

of third-degree murder. Id. at 20-21.

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

standard and scope of review of an order dismissing a PCRA petition. Proper 

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

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 
J-A22027-23

- 9 -

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 

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).

“It is well-established that counsel is presumed effective[.]” 

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland 

v. Washington, 466 U.S. 668, 687-691 (1984). To plead and prove a claim 

of ineffective assistance of counsel, “a petitioner must establish: (1) that the 

underlying issue has arguable merit; (2) counsel's actions lacked an 

objective[ly] reasonable basis; and (3) actual prejudice resulted from 

counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 

706 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 463 (Pa. 2014). “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 determining whether counsel's action was reasonable, we do not 

question whether there were other more logical courses of action which 

counsel could have pursued[. R]ather, we must examine whether counsel's 

decision[] had any reasonable basis.” Commonwealth v. Washington, 927 

A.2d 586, 594 (Pa. 2007). A petitioner establishes prejudice when he or she 

demonstrates “that there is a reasonable probability that, but for counsel's 
J-A22027-23

- 10 -

[acts or omissions], the result of the proceeding would have been different.” 

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).

Section 2503 of the Crimes Code defines voluntary manslaughter, in 

pertinent part, as follows:

§ 2503. Voluntary manslaughter

. . .

(b) Unreasonable belief killing justifiable. - A person who 

intentionally or knowingly kills an individual commits voluntary 

manslaughter if at the time of the killing he believes the 

circumstances to be such that, if they existed, would justify the 

killing under Chapter 5 of this title (relating to general principles 

of justification), but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b). “Unreasonable belief” voluntary manslaughter is

sometimes referred to as “imperfect self-defense.” Commonwealth v. 

Green, 273 A.3d 1080, 1087 (Pa. Super. 2022), appeal denied, 289 A.3d 522 

(Pa. 2022).

An “unreasonable belief” voluntary manslaughter jury instruction and,

in turn, the inclusion of the offense on a verdict slip, is not required but, rather, 

is only justified in the limited circumstance where “a defendant held an 

unreasonable rather than a reasonable belief that deadly force was required 

to save his or her life, and all other principles of justification under 18 

Pa.C.S.[A.] § 505 have been met.” Green, 273 A.3d at 1087 (citation and 

original quotation marks omitted). The “other principles of justification” under 

Section 505 require that the defendant did not provoke the threat and the 

defendant did not violate a duty to retreat. Commonwealth v. Jones, 271 
J-A22027-23

- 11 -

A.3d 452, 458 (Pa. Super. 2021), appeal denied, 282 A.3d 1122 (Pa. 2022), 

cert. denied, 143 S.Ct. 469 (2022). Thus, the difference between self-defense 

and “unreasonable belief” voluntary manslaughter is that self-defense 

requires a “reasonably founded belief of either imminent peril to life or great 

bodily harm” whereas “unreasonable belief” voluntary manslaughter involves 

an uncontrollable fear of death or great bodily harm, “conceivable as existing 

[from the defendant’s subjective belief] but not reasonably[, or objectively,]

justified by the circumstances.” Green, 273 A.3d at 1088, quoting

Commonwealth v. Light, 326 A.2d 288, 294 (Pa. 1974); see also 

Commonwealth v. Tilley, 595 A.2d 575, 582 (Pa. 1991) (stating, an 

“unreasonable belief” voluntary manslaughter self-defense claim, also known 

as the “imperfect self-defense,” “is imperfect in only one respect - an 

unreasonable rather than a reasonable belief that deadly force was required 

to save the [defendant’s] life”).

Stated simply, “unreasonable belief” voluntary manslaughter requires 

that a defendant hold a subjective belief in the danger of, inter alia, death or 

serious bodily injury and that the defendant’s belief, as determined by the 

trier-of-fact, be unreasonable under the circumstances. Green, 273 A.3d at 

1089. “[A] trial court shall charge on [“unreasonable belief”] voluntary 

manslaughter only when requested, where [] the offense of [“unreasonable 

belief”] voluntary manslaughter has been made an issue in the case[,] and 

the trial evidence could reasonably support a verdict on it.” Commonwealth 

v. Carter, 466 A.2d 1328, 1329 (Pa. 1983) (recognizing that, the 
J-A22027-23

- 12 -

unconditional requirement that an “unreasonable belief” voluntary 

manslaughter instruction be provided “only serves to confuse juries and invite 

them to base their verdicts on whim and caprice”).

In denying Appellant’s petition on this ground, the PCRA court stated,

[Appellant] claims that [trial counsel] failed to offer to the [trial] 

court a proposed jury instruction on [“unreasonable belief”] 

voluntary manslaughter. [Trial counsel] testified [at the PCRA 

evidentiary hearing] that this was specifically discussed between 

[trial counsel and Appellant] and rejected by both [parties], as 

both confusing to the jury, and opening the possibility for a 

“compromise verdict.” The matter comes down to a credibility 

determination as to whether the conversation took place or not. 

Throughout his PCRA testimony, [trial counsel] was self-effacing 

and candid in his assessment as to many points and many topics. 

He openly [admitted] when he [could not] remember something, 

or when he failed to consider some questions or examination 

during the trial. On this point, however, [trial counsel] is clear, 

precise[,] and unequivocal. He [raised the “unreasonable belief” 

voluntary manslaughter instruction topic with Appellant], it was 

discussed, and it was rejected by [Appellant] and [trial counsel]. 

The [PCRA court] determines that [trial counsel’s] testimony is 

credible on this point and finds no ineffectiveness by [trial counsel, 

as the matter was considered and rejected by [Appellant] and [his 

trial] counsel.

PCRA Court Opinion, 12/5/22, at 1-2 (unpaginated) (extraneous capitalization 

omitted).

At the PCRA evidentiary hearing, trial counsel testified that prior to 

submitting his proposed jury instructions to the trial court, which did not, 

ultimately, include a proposed instruction on “unreasonable belief” voluntary 

manslaughter, trial counsel met with Appellant to discuss the proposed 

instructions. N.T., 7/14/22, at 28-29. At the meeting with Appellant, trial 
J-A22027-23

- 13 -

counsel’s draft of the proposed jury instructions included an “unreasonable 

belief” voluntary manslaughter instruction, and this instruction was a point of 

discussion with Appellant. Id. Trial counsel stated that he and Appellant 

discussed whether to include the “unreasonable belief” voluntary 

manslaughter instruction “in detail.” Id. Trial counsel recalled explaining how 

voluntary manslaughter was a lesser offense and would carry a lesser 

sentence. Id. at 31. Trial counsel explained that the standard jury instruction 

for “unreasonable belief” voluntary manslaughter was, in his opinion, 

confusing to the jury, making “it sound like the jurors have to convict 

[Appellant] of voluntary manslaughter.”11 Id. at 28. Appellant agreed that 

____________________________________________

11 Pennsylvania Suggested Standard Criminal Jury Instruction Section 

15.2503A, relating to voluntary manslaughter – murder in issue, states, in 

pertinent part, as follows:

15.2503A VOLUNTARY MANSLAUGHTER - MURDER IN 

ISSUE

1. As my earlier definition of malice indicates, there can be no 

malice when certain reducing circumstances are present. When 

these circumstances are present, a killing may be voluntary 

manslaughter, but never murder. This is true when a defendant 

. . . [kills under an unreasonable mistaken belief in justifying 

circumstances].

2. Accordingly, you can find malice and murder only if you are 

satisfied beyond a reasonable doubt that the defendant was not 

acting . . . [under an unreasonable belief that the circumstances 

were such that, if they existed, would have justified the killing].

. . .
J-A22027-23

- 14 -

____________________________________________

[5. The reducing circumstance of a defendant acting under an 

unreasonable belief that the circumstances of the killing were 

justified applies where:

a. the defendant actually believed that [he] [she] [a third party] 

was in immediate danger of death or serious bodily injury [or 

kidnapping or sexual intercourse compelled by force or threat] 

from [name of alleged victim] at the time [he] [she] used deadly 

force, but [his] [her] belief was unreasonable in light of the facts 

as they appeared to [him] [her] at the time;

b. the defendant did not provoke the use of force by the alleged 

victim by engaging in conduct that showed it was [his] [her] intent 

to cause death or serious bodily injury to the alleged victim; and

c. the defendant did not violate [his] [her] duty to retreat from 

the place, surrender possession of something, or comply with a 

lawful demand, as I explained those terms when I described to 

you the justification defense.

Therefore, you can find malice and murder only if the 

Commonwealth proves beyond a reasonable doubt one of the 

following elements:

a. the defendant did not actually believe that [he] [she] [a third 

party] was in immediate danger of death or serious bodily injury 

[or kidnapping or sexual intercourse compelled by force or threat] 

from [name of alleged victim] at the time [he] [she] used deadly 

force. Note that the unreasonableness of the defendant's belief is 

not the issue here, as it was when I explained justification to you. 

The question is whether the defendant actually believed such an 

immediate danger existed at the time [he] [she] used deadly

force, and to prove malice through this element, the 

Commonwealth must prove that the defendant did not actually 

hold such a belief; or

b. the defendant provoked the use of force by the alleged victim 

by engaging in conduct that showed it was [his] [her] intent to 

cause death or serious bodily injury to the alleged victim; or
J-A22027-23

- 15 -

the standard jury instruction was confusing and, ultimately, decided that it 

should not be included in the proposed jury instructions submitted to the trial 

court because he, as well as trial counsel, did not want to “give the jurors a 

way out” by convicting Appellant of voluntary manslaughter. Id. at 28, 31. 

In short, Appellant elected to narrow the jury’s options by eliminating 

voluntary manslaughter as a potential verdict and confronting the jury with 

the choice of either convicting Appellant of murder or exonerating him of that

offense. Id.

Trial counsel explained that Appellant’s defense strategy was “wholly 

self-defense,” and that the video and audio recording of the incident was the 

____________________________________________

c. the defendant could have avoided the use of deadly force by 

[retreating from the place] [surrendering possession of 

something] [or] [complying with a lawful demand], as I previously 

defined [this] [those] concept[s] for you when I discussed the 

defense of justification.]

. . .

[6. If you do not find the defendant had malice and committed 

murder, you may find [him] [her] guilty of voluntary 

manslaughter as long as you are satisfied that the following three 

elements have been proven beyond a reasonable doubt:

First, that [name of victim] is dead;

Second, that the defendant killed [him] [her]; and

Third, that the defendant had the intent to kill.]

Pa.S.S.J.I. (Criminal) §15.2503A (revised May 2019) (brackets in original); 

see also PCRA Evidentiary Hearing Exhibit C.
J-A22027-23

- 16 -

“crux of the case.” Id. at 35. The video and audio recording, trial counsel 

stated, showed the victim coming toward Appellant “aggressively swinging” 

and attacking Appellant, that Appellant warned the victim he had a handgun, 

and that Appellant acted reasonably in shooting the victim, especially after he 

shot the victim once and the victim still came at Appellant. Id. at 32-33, 

37-38, 40. At the evidentiary hearing, trial counsel agreed, on 

cross-examination, that providing the jury with an “unreasonable belief”

voluntary manslaughter instruction, and including the offense on the verdict 

slip, would have allowed the jury to “split the baby” and come to a 

compromised guilty verdict based on “unreasonable belief” voluntary 

manslaughter. Id. at 39. Trial counsel believed it was “advantageous” for 

Appellant that the jury instructions, as well as the verdict slip, not to include 

“unreasonable belief” voluntary manslaughter, and Appellant agreed. Id.

Upon review, we discern no error of law or abuse of discretion in the 

PCRA court’s denial of Appellant’s petition on the ground that trial counsel was 

ineffective for failing to request an “unreasonable belief” voluntary 

manslaughter jury instruction or to request that the offense be placed on the 

verdict slip. As discussed supra, a trial court is not required to provide an 

“unreasonable belief” voluntary manslaughter jury instruction. Rather, a 

defendant is required to request such an instruction and the evidence must 

support the instruction. 

Appellant failed to demonstrate that trial counsel’s exclusion of the

“unreasonable belief” voluntary manslaughter instruction from the proposed 
J-A22027-23

- 17 -

jury instructions, and the verdict slip, lacked an objectively reasonable basis. 

At the evidentiary hearing, trial counsel explained that he believed that the 

“unreasonable belief” voluntary manslaughter jury instruction was confusing

and that the inclusion of the instruction, and listing the offense on the verdict 

slip, simply provided the jury with an additional basis to convict him. Instead, 

trial counsel stated that Appellant’s defense strategy was “wholly 

self-defense” and that trial counsel believed that the video and audio recording 

of the incident wholly supported their strategy of self-defense. As trial counsel 

explained, providing an instruction for “unreasonable belief” voluntary 

manslaughter, and listing the offense on the verdict slip, ran the risk that the 

jury would view voluntary manslaughter as a “compromise” to finding 

Appellant guilty of a criminal offense. Therefore, Appellant failed to 

demonstrate that trial counsel lacked reasonable grounds to omit 

“unreasonable basis” voluntary manslaughter from the jury instructions. See 

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (stating that, the 

question is not whether there were other more logical courses of action which 

trial counsel could have pursued but, rather, whether trial counsel’s decisions 

had any reasonable basis); see also Commonwealth v. Sepulveda, 55 A.3d 

1108, 1122 (Pa. 2012) (stating that, a court, in assessing trial counsel’s 

performance in the context of a ineffectiveness claim, must be careful to 

assess that performance “without the distortion of hindsight, and must instead 

review the circumstances under which [trial] counsel’s decisions were made”); 

Carter, 466 A.2d at 1329 (recognizing that, an “unreasonable belief” 
J-A22027-23

- 18 -

voluntary manslaughter jury instruction may confuse the jury and invite them 

to return a guilty verdict based on whim and caprice).

Finally, Appellant failed to show how he was prejudiced by the lack of 

an “unreasonable belief” voluntary manslaughter jury instruction, and the 

listing of the offense on the verdict form. The jury convicted Appellant of, 

inter alia, third-degree murder, which required the jury to find that Appellant 

killed the victim with legal malice, but without the specific intent to kill that 

was required to convict Appellant of first-degree murder.12 See

____________________________________________

12 The trial court’s charge included the following pertinent excerpts with regard 

to third-degree murder and malice:

For murder of the third[-]degree a killing is with malice if the 

perpetrator's actions show his wanton and willful disregard of an 

unjustified and extremely high risk that his conduct will result in 

the death or serious bodily injury of another. In this form of 

malice the Commonwealth need not prove that the perpetrator

specifically intended to kill another. The Commonwealth must 

prove, however, that he took action while consciously disregarding 

the most serious risk he was creating and that, by his disregard 

of that risk, he demonstrated his extreme indifference to the value 

of human life.

. . .

Third-degree murder is a killing with malice that is not first- or 

second-degree murder. [Appellant] has been charged with 

third-degree murder. To find [Appellant] guilty of this offense, 

you must find that the following three elements have been proven 

beyond a reasonable doubt: First, that [the victim] is dead; 

second, that [Appellant] killed him; and third, that [Appellant] did 

so with malice.
J-A22027-23

- 19 -

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008) (stating, 

“[m]alice is the essential element of third[-]degree murder, and is the 

distinguishing factor between murder and manslaughter”). Assuming, for 

purpose of our discussion, that an “unreasonable belief” voluntary 

manslaughter jury instruction had been provided and the offense was listed 

on the verdict slip, it still remains that the jury found beyond a reasonable 

doubt that Appellant acted with malice and was, therefore, guilty of 

third-degree murder. In determining that Appellant acted with malice, there 

is a low probability that the jury would have convicted Appellant of 

“unreasonable belief” voluntary manslaughter, as malice is not an element of 

this criminal offense. Therefore, Appellant failed to demonstrate how he was 

____________________________________________

The word malice, as I'm using it, has a special legal meaning and 

it does not mean hatred, spite[,] or ill[-]will. Malice is a shorthand 

way of referring to particular mental states that the law regards 

as being bad enough to make a killing murder.

. . .

When deciding whether [Appellant] acted with malice, you should 

consider all of the evidence regarding his words and conduct and 

the attending circumstances that may show a state of mind.

If you believe that [Appellant] intentionally used a deadly weapon 

on a vital part of [the victim’s] body, you may regard that as an 

item of circumstantial evidence from which you may, if you 

choose, infer that [Appellant] acted with malice. 

N.T., 1/29/20, at 234, 236-237.
J-A22027-23

- 20 -

prejudiced by the exclusion of the “unreasonable belief” voluntary 

manslaughter offense from the proposed jury instructions and verdict slip.

In sum, we discern no error of law or abuse of discretion in the PCRA 

court’s order denying Appellant’s petition on this ground. Therefore, we 

affirm, in part, the December 5, 2023 order dismissing Appellant’s petition on 

this ground.

Appellant’s remaining three issues are raised for the first time on appeal 

within the context of a Bradley ineffectiveness claim, wherein 

newly-appointed PCRA counsel asserts that Appellant discussed these issues 

with original PCRA counsel, but the issues were not presented in the PCRA 

petition. Appellant’s Brief at 11 (stating that, original PCRA counsel was 

ineffective for failing to raise these issues before the PCRA court, pursuant to 

Bradley, supra).

In Bradley, 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.

Bradley, 261 A.3d at 401 (emphasis added) (recognizing that, in light of the 

PCRA’s one-year jurisdictional time-bar (to wit, a petition must be filed within 

one year of final judgment), permitting a petitioner to raise pro se PCRA 

counsel’s ineffectiveness at the first opportunity after the PCRA court denies 

relief, preserves a petitioner’s right to effective PCRA counsel). In so holding, 

the Bradley Court rejected the argument that “consideration on collateral 
J-A22027-23

- 21 -

appeal of claims of PCRA counsel ineffectiveness” constitutes a second or 

subsequent serial PCRA petition or violates the PCRA’s one-year jurisdictional 

time-bar. Id. at 404. Moreover, the Bradley Court recognized that “[i]n 

some instances, the record before the appellate court will be sufficient to allow 

for disposition of any newly-raised ineffectiveness claims.” Id. at 402. 

Otherwise, the Bradley Court explained, “the appellate court may need to 

remand [the case] to the PCRA court for further development of the record 

and for the PCRA court to consider such claims as an initial matter.” Id.

A review of the record demonstrates that Appellant’s first opportunity to 

raise original PCRA counsel’s ineffectiveness emerged upon the filing of 

current PCRA counsel’s appellate brief on October 4, 2023. Because 

Appellant’s three issues, noted supra, were first raised with this Court on 

appeal within the context of a Bradley ineffectiveness claim, the PCRA court 

did not have an opportunity to substantively consider these three issues. As 

such, pursuant to Bradley, we are constrained to vacate, in part, the PCRA 

court’s December 5, 2023 order, and remand this case so the PCRA court can 

substantively consider Appellant’s three issues.13 See Bradley, 261 A.3d at 

____________________________________________

13 On October 13, 2023, Appellant filed pro se, with this Court, a “notice of 

intent to file another motion for appointment of substitute counsel with the 

[PCRA] court.” The envelope Appellant used to mail his “notice” reveals a 

postage cancellation stamp of October 13, 2023. Therefore, we deem 

Appellant’s “notice” as filed with this Court on October 13, 2023. See Jones, 

700 A.2d at 426. Moreover, although Appellant styles his “notice” filed with 

this Court as a request for leave to file a motion for the appointment of new 
J-A22027-23

- 22 -

402 (permitting the remand of a case for further development of the record 

and consideration of the issues by the PCRA court as an initial matter).

Order affirmed, in part, and vacated, in part. Case remanded. 

Jurisdiction relinquished.

____________________________________________

PCRA counsel, we deem Appellant’s “notice,” for purpose of the case sub 

judice, as a motion for the appointment of new PCRA counsel.

In his “notice,” Appellant requests that this Court permit him to file a motion 

seeking the appointment of new PCRA counsel pursuant to Bradley, supra. 

Appellant’s Pro Se Motion, 10/13/23. In his pro se request for the 

appointment of replacement PCRA counsel, Appellant, relying on Bradley, 

supra, asserts that current PCRA counsel was ineffective for filing an appellate 

brief, on October 4, 2023, raising several issues that were not initially 

presented to the PCRA court and, therefore, are subject to waiver because 

they cannot be raised for the first time on appeal. Id., citing Pa.R.A.P. 302(a); 

Commonwealth v. Albrecht, 720 A.2d 693, 704 (Pa. 1998).

As discussed supra, current PCRA counsel raised these three issues, asserting 

original PCRA counsel’s ineffectiveness, within the context of a Bradley

ineffectiveness claim in his October 4, 2023 appellate brief. Within the context 

of this Bradley claim, we find that the issues are not subject to waiver. 

Therefore, we dismiss Appellant’s “notice” as moot.

Upon remand, however, the PCRA court shall first determine if Appellant 

wishes to proceed with current PCRA counsel or have new PCRA counsel 

appointed.
J-A22027-23

- 23 -

DATE: 02/23/2024