J-S28009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDDIE JOE POTEET, SR. 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1353 MDA 2021

Appeal from the PCRA Order Entered September 22, 2021

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

CP-67-CR-0006263-2015

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

MEMORANDUM BY OLSON, J.: FILED: OCTOBER 24, 2022

Appellant, Eddie Joe Poteet, Sr., appeals from the order entered on 

September 22, 2021, dismissing his first petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate the 

order and remand.

This Court previously summarized the facts and procedural history of 

this case as follows:

In January 2000, Appellant began sexually abusing [his 

daughter], who was then four years old. The abuse continued until 

she was approximately ten years old. The [v]ictim did not report 

the abuse immediately because she feared Appellant would 

physically harm her and others. On July 16, 2015, she reported 

the abuse to the police.

In September 2017, following trial, a jury convicted Appellant of 

[involuntary deviate sexual intercourse, criminal attempt (rape), 
J-S28009-22

- 2 -

indecent assault, corruption of minors, and incest.

1] The trial court 

sentenced him to an aggregate term of twenty to forty years of 

incarceration. In addition, the court informed Appellant that he 

was required to register as a sexual offender.

Appellant timely filed a [p]ost-[s]entence motion, which the trial 

court denied. Appellant did not file a direct appeal. 

In June 2018, Appellant timely filed a [PCRA p]etition[,] seeking 

the reinstatement of his appellate rights nunc pro tunc. The 

court granted relief.

Commonwealth v. Poteet, 249 A.3d 1126, at *1 (Pa. Super. 2021)

(unpublished memorandum) (original footnote omitted). We ultimately 

affirmed Appellant’s judgment of sentence in an unpublished memorandum 

decision on February 3, 2021.

Thereafter, as the PCRA court recounts:

On March 2, 2021, Appellant filed a [PCRA] petition [] and on April 

26, 2021, Appellant filed an amended [PCRA] petition[.] On 

August 9, 2021, a hearing on Appellant’s [PCRA] petition[s] was 

rescheduled for the third time [until] September 22, 2021. On 

September 16, 2021, Appellant filed a witness certification for 

Brian A. McNeil, Esquire with proof of service. On September 17, 

2021, [Appellant] filed a witness certification for Ronald J. Gross,

Esquire. On September 22, 2021, [Appellant] filed a witness 

certification for Jay Whittle, Esquire with proof of service. A 

[PCRA] hearing [] was held before [the PCRA] court on September 

22, 2021.

At the hearing on September 22, 2021, the Commonwealth made 

a motion to dismiss based on (1) the insufficiency of the witness 

certifications, (2) that the claim [raised] had been previously 

litigated, and (3) that trial counsel had failed to file a written 

motion to pierce the Rape Shield [Law]. After hearing arguments 

from both parties, the PCRA court dismissed Appellant’s [PCRA] 

____________________________________________

1 18 Pa.C.S.A. §§ 3123(b), 901(a)/3121(c), 3126(a)(7), 6301(a)(1)(i), and 

4302(a), respectively.
J-S28009-22

- 3 -

petition[s] based upon the Commonwealth’s [arguments].

[2]

 On 

October 4, 2021, Appellant filed a motion for reconsideration of 

[the] denial of [his] PCRA petition[s] and a memorandum of law 

in support of reconsideration, and [the PCRA] court denied 

Appellant’s motion for reconsideration on October 15, 2021. 

On October 20, 2021, Appellant filed a notice of appeal. [On 

November 4, 2021, the PCRA court granted Appellant’s motion for 

an extension of time to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P.] 1925(b)]. On 

December 9, 2021, Appellant filed [his Rule 1925(b)] statement[.] 

The [PCRA] court [] issue[d an opinion pursuant to Pa.R.A.P.] 

1925(a) [on December 15, 2021].

PCRA Court Opinion, 12/15/2021, at 4-5 (superfluous capitalization omitted).

The PCRA court cited Appellant’s failure to comply with 42 Pa.C.S.A. 

§ 9545(d) and the inadequacy of his witness certifications as grounds for 

dismissing Appellant’s amended petition. More specifically, regarding the 

witness certifications proffered in support of Appellant’s PCRA claims, the 

PCRA court opined:

Here, Appellant filed three witness certifications less than one 

week before the scheduled PCRA hearing. Further, the witness 

certification for Appellant’s trial counsel, Jay Whittle, Esquire was 

filed on the same day as the scheduled PCRA hearing. Appellant 

had substantial time to prepare witness certifications long before 

the week and day of the PCRA hearing because the PCRA hearing 

was scheduled for a date in September of 2021, [nearly] five 

months after Appellant filed his [a]mended [PCRA p]etition [] in 

April of 2021. Appellant’s undue delay in filing witness 

certifications, especially filing a witness certification mere hours 

____________________________________________

2

 Upon review of the certified record, the PCRA court did not hear any 

testimony from Appellant or the three proffered attorney witnesses at the 

PCRA hearing. N.T., 9/22/2021, at 1-15. Instead, the PCRA court only heard 

argument from PCRA counsel and the Commonwealth regarding alleged 

deficiencies in the witness certifications. The PCRA court denied PCRA 

counsel’s request to file proper witness certifications and dismissed the case. 

Id. at 14-15.
J-S28009-22

- 4 -

before the start of the PCRA hearing, was prejudicial to the 

Commonwealth by precluding the Commonwealth an opportunity 

to investigate the witness identified in the certification. 

Additionally, because each of Appellant’s witness certifications 

neglected to provide the substance of each witness's testimony, 

[the PCRA c]ourt [found] that Appellant failed to comply with 42 

Pa.C.S.[A. §] 9545(d).

* * *

Due to Appellant’s pending appeal to the Superior Court of 

Pennsylvania, [the PCRA c]ourt [concluded it] lack[ed] jurisdiction 

to [o]rder Appellant to file a subsequent PCRA [petition]. 

However, [the PCRA c]ourt [found] that PCRA counsel was 

ineffective for filing inadequate witness certifications that did not 

substantially comply with [the requirement in 42 Pa.C.S.A. 

§ 9545(d) to include the substance of trial counsel’s and 

Appellant’s anticipated testimony]. Therefore, [the PCRA c]ourt 

request[ed] the Superior Court of Pennsylvania to reinstate 

Appellant’s rights to [PCRA] relief to allow Appellant to pursue the 

initial claims raised in his PCRA [petition regarding] effective 

assistance of counsel.

Id. at 6-7.

The PCRA court offered additional grounds for the dismissal of 

Appellant’s amended petition. Specifically, the PCRA court determined that 

Appellant previously litigated on direct appeal his claim that the trial court 

erred in barring admission of evidence that the victim made false accusations 

against another individual. In view of this ruling on direct appeal, the PCRA 

court reasoned that Appellant could not raise a related claim alleging trial 

counsel’s ineffectiveness in failing to proffer evidence of the victim’s prior false 

accusations. The PCRA court opined:

The PCRA court did not err in dismissing the [amended PCRA 

petition] because the Superior Court of Pennsylvania decided this 

preclusion of evidence issue, and affirmed the trial court’s decision 

to preclude questioning the victim on prior accusations of sexual 
J-S28009-22

- 5 -

assault against another individual. []Even if the Rape Shield Law 

did not bar the evidence, Appellant has failed to show how [the 

victim’s] prior accusations of sexual assault were relevant in the 

instant case. Evidence is relevant when it has a tendency to make 

a fact more or less probable than it would be without the evidence. 

Whether or not [the victim] accused another person of sexually 

assaulting her does not make it more or less probable that 

Appellant assaulted her.

* * *

Here, the Superior Court of Pennsylvania has previously made a 

decision on this allegation by stating, “We agree that the trial court 

properly excluded Appellant from cross-examining the [v]ictim 

about whether she had accused someone else of sexual assault.” 

Therefore, [] the PCRA court did not err in dismissing the 

[a]mended [PCRA petition] because the issue of precluding 

Appellant from cross-examining the [v]ictim about whether she 

had accused someone else of sexual assault was decided by the 

Superior Court on direct appeal.

Id. at 8-9 (footnotes and citations omitted).

On appeal, Appellant presents the following issues for our review:

A. Whether the PCRA court erred in dismissing the amended 

[petition] for post-conviction collateral relief by finding that the 

witness certifications filed [regarding] trial counsel’s and 

[Appellant’s] testimony failed to substantially comply with 

[the] notice requirement under 42 Pa.C.S.[A. §] 9545(d)?

B. Whether prior PCRA counsel [ ] was ineffective for filing witness 

certifications that did not substantially comply with notice 

[requirements regarding] trial counsel’s and [Appellant’s] 

testimony under 42 Pa.C.S.[A. §] 9545(d)? (This claim is 

asserting prior PCRA counsel’s ineffectiveness and is raised on 

appeal based on new counsel for [Appellant] being appointed 

pursuant to Commonwealth v. Bradley, [261 A.3d 381](Pa. 

2021).)

C. Whether prior PCRA counsel [ ] was ineffective for failing to 

comply with and provide for the procedural requirements of the 

Rape Shield Law within the witness certifications under 42 

Pa.C.S.[A. §] 9545(d) regarding evidence that the victim made 
J-S28009-22

- 6 -

false accusations against another individual? (This claim is 

asserting prior PCRA counsel’s ineffectiveness and is raised on 

appeal based on new counsel for [Appellant] being appointed 

pursuant to Commonwealth v. Bradley, [261 A.3d 381](Pa. 

2021).)

D. Whether the PCRA court erred in dismissing the amended 

motion for post-conviction collateral relief based upon a finding 

that the claim that trial counsel was ineffective for fail[ing] to 

specifically present a pro[f]fer to the trial court that the victim 

made false accusations against another individual was 

previously litigated on direct appeal?

Appellant’s Brief at 4-5 (complete capitalization omitted).

Although presented as four separate appellate issues, the issues can be 

fairly divided into two distinct claims. First, Appellant asserts that prior PCRA 

counsel was ineffective for failing to file proper, timely witness certifications 

in support of his underlying PCRA claims. Id. at 18-33. Appellant contends

that the “PCRA [c]ourt failed to identify the insufficiencies of the [w]itness 

[c]ertifications” prior to dismissing his PCRA petition and “denied PCRA 

[c]ounsel for Appellant the opportunity to cure any defect[.]” Id. at 16. 

Citing Bradley, Appellant argues that prior PCRA counsel’s ineffectiveness is 

apparent from the record and that this appeal is the first opportunity to 

present his layered ineffective assistance of counsel claim. Id. at 29-32. In 

support, Appellant cites the portion of the PCRA court’s opinion wherein it 

concedes that Appellant’s collateral rights should be reinstated. Id. at 32. 

Next, Appellant argues that the PCRA court erred by determining that his claim 

that trial counsel was ineffective for failing to proffer evidence that the victim 

made false accusations against another individual was previously litigated on 
J-S28009-22

- 7 -

direct appeal. Id. at 33-35. Appellant avers that “the claim that was litigated 

and affirmed on direct appeal [went to] the admissibility of the evidence of 

the victim making claims of sexual abuse against another.” Id. at 34. 

Appellant claims that his derivative and distinct claim is that trial counsel failed 

to proffer evidence suggesting the victim had fabricated the alleged prior 

incident, misled authorities, or that she recanted her other allegation under 

scrutiny. Id. at 35. Appellant claims that his claim of ineffective assistance 

of counsel is legally distinct from the underlying evidentiary claim presented 

on direct appeal. Id. at 34. For the reasons that follow, we agree that a 

remand is necessary to allow Appellant to develop these claims.3

“This Court's standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error.” Commonwealth v. 

Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citation omitted). “The PCRA 

court's findings will not be disturbed unless there is no support for the findings 

in the certified record.” Id. (citation omitted). “The PCRA court's factual 

determinations are entitled to deference, but its legal determinations are 

subject to our plenary review.” Id. (citation omitted).

____________________________________________

3

 The Commonwealth concedes that Appellant is entitled to a remand on both 

issues. See Commonwealth’s Brief at 16 (“Thus, a remand is necessary for a 

new PCRA [p]etition to be filed with proper certifications of both trial and 

[a]ppellate [c]ounsel, so that the layered ineffectiveness claim can be properly 

analyzed.”); see also id. at 24 (“The PCRA court did err in dismissing the 

[a]mended [PCRA petition] because the issue was not previously litigated 

[because Appellant’s] claim of ineffectiveness is separate from his claim on 

[direct] appeal that the evidence should have been admitted as presented.”)
J-S28009-22

- 8 -

The Pennsylvania Supreme Court has recently determined that “a PCRA 

petitioner [may] raise claims of ineffective assistance of counsel at the first 

opportunity to do so, even on appeal.” Commonwealth v. Bradley, 261 

A.3d 381, 401 (Pa. 2021). The Bradley Court noted:

In some instances, the record before the appellate court will be 

sufficient to allow for disposition of any newly-raised 

ineffectiveness claims. However, in other cases, the 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. Consistent with our prior case law, to 

advance a request for remand, a petitioner would be required to 

provide more than mere boilerplate assertions of PCRA counsel's 

ineffectiveness; however, where there are material facts at issue 

concerning claims challenging counsel's stewardship and relief is 

not plainly unavailable as a matter of law, the remand should be 

afforded.

[...A]n appellate court will not be tasked with developing the 

record or acting as a court of original jurisdiction. Rather, 

appellate courts will have the ability to grant or deny relief on 

straightforward claims, as well as the power to remand to the 

PCRA court for the development of the record.

Bradley, 261 A.3d at 402–403 (internal citations, quotations, and original 

brackets omitted).

Pursuant to 42 Pa.C.S.A. § 9545(d), when a PCRA petitioner requests 

an evidentiary hearing, they must “include a certification signed by each 

intended witness stating the witness's name, address, date of birth and 

substance of testimony[.]” 42 Pa.C.S.A. § 9545(d)(1)(i). The petitioner or 

counsel may sign the certification if they are “unable to obtain the signature 

of a witness[.]” 42 Pa.C.S.A. § 9545(d)(1)(ii). However, an en banc panel of 

this Court has stated “it is improper to affirm a PCRA court's decision [to deny 
J-S28009-22

- 9 -

relief] on the sole basis of inadequate witness certifications where the PCRA 

court did not provide notice of the alleged defect.” Commonwealth v. 

Pander, 100 A.3d 626, 642 (Pa. Super. 2014) (en banc), citing Pa.R.Crim.P. 

905(B) (“When a petition for post-conviction collateral relief is defective as 

originally filed, the judge shall order amendment of the petition, indicate the 

nature of the defects, and specify the time within which an amended petition 

shall be filed. If the order directing amendment is not complied with, the 

petition may be dismissed without a hearing.”).

Finally, our Supreme Court has explained

claims of trial counsel ineffectiveness deriving from an underlying 

claim of error that was litigated on direct appeal cannot 

automatically be dismissed as “previously litigated.” Rather, Sixth 

Amendment claims challenging counsel's conduct at trial are 

analytically distinct from the foregone claim of trial court error 

from which they often derive, and must be analyzed as such. To 

succeed on a claim of counsel ineffectiveness, of course, the 

defendant must rebut the presumption of competence and 

demonstrate [prejudice].

Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008) (internal citations 

omitted). 

Applying the foregoing principles, we vacate the order dismissing

Appellant’s amended petition and remand this case to allow Appellant to 

develop his claims. First, the PCRA court erred by dismissing Appellant’s 

amended PCRA petition based solely upon defective witness certifications. 

See Pander, supra. Moreover, this appeal is the first opportunity Appellant 

has had to raise the issue of prior PCRA counsel’s ineffectiveness with the 
J-S28009-22

- 10 -

assistance of new counsel. See Bradley, supra. As such, we vacate the 

PCRA court’s dismissal order and remand to allow Appellant to file an amended 

PCRA petition with proper witness certifications and afford him the opportunity 

to develop his claims with more attentive counsel.

Moreover, regarding Appellant’s claim that trial counsel was ineffective 

for failing to proffer evidence that the victim made false accusations against 

another individual, we conclude that the PCRA court erred by finding the issue 

was previously litigated on direct appeal. On direct appeal, “[w]e agree[d] 

that the trial court properly precluded Appellant from cross-examining the 

[v]ictim about whether she had accused someone else of sexual assault 

[because] Appellant did not proffer evidence suggesting that the [v]ictim had 

fabricated this prior incident, that she went to the authorities and misled them, 

or that she recanted her allegation under scrutiny.” Commonwealth v. 

Poteet, 249 A.3d 1126, at *6 (Pa. Super. 2021) (unpublished memorandum). 

Currently, Appellant is challenging trial counsel’s stewardship for failing to 

proffer evidence which would have permitted cross-examination of the victim. 

As such, while derivative of the underlying claim addressed on direct appeal, 

Appellant’s ineffective assistance of counsel is distinct and, therefore, it was 

improper for the PCRA court to find that Appellant’s claim was previously 

litigated. Hence, we vacate the order dismissing Appellant’s PCRA petition 

and remand this matter for further proceedings. 

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.
J-S28009-22

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2022