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

v.

WALTER DONALD BRADSHAW

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 561 WDA 2020 Appeal from the PCRA Order Entered July 12, 2019 In the Court of Common Pleas of Bedford County Criminal Division at

No(s): CP

- 05

- CR

- 0000445

- 2010

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J. * MEMORANDUM BY BOWES, J.: FILED FEBRUARY 10, 2021 Walter Donald Bradshaw appeals from the July 12, 2019 order that denied his petition filed under the Post

- Conviction Relief Act (“PCRA”) . After careful review, we vacate and remand for further proceedings

. As previously summarized by this Court, this case concerns “ allegations of [Appellant] sexually assaulting H.O., an unrelated, minor female, over a period of approximately two years.” Commonwealth v. Bradshaw , 116 A.3d 699 (Pa.Super. 2014) (unpublished memorandum at 1 ). The charges in this case stem from Appellant spending a night with the victim at a hotel , where he “initiated sexual contact despite H.O.’s protests.” Id

. Appellant was represented at his trial by Thomas Crawford, Jr., Esquire (“Attorney Crawford”), and Barbara Weiss, Esquire (“Attorney Weiss”).

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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Ultimately , a jury convicted Appellant of rape of a child and numerous related
crimes

. The trial court sentenced Appellant to an aggregate term of sixty

- six years and eight months to 150 years of incarceration. Appellant filed a timely direct appeal to this Court, which affirmed his judgment of sentence. Id . at 11. Appellant petitioned for allowance of appeal before our Su preme Court , which denied his request to appeal

. Commonwealth v. Bradshaw , 118 A.3d 1107 (Pa. 2015) ( per curiam order). On October 11, 2016, Appellant filed a timely PCRA petition alleging that Attorneys Crawford and Weiss “were ineffective for failing to introduce into the record at trial medical records detailing [H.O.’s] medical examination[.]” Memorandum Opinion, 7/12/19, at 2. A hearing was held to investigate these claims. However, at the PCRA hearing, Attorney Crawford’s testimony revealed serious concerns unrelated to Appellant’s initial allegations. Specifically, Attorney Crawford began his testimony by claiming that he had “endless” but unsuccessful discussions with then

- Distri ct Attorney William Higgins, Esquire (“DA Higgins”) , concerning a potential plea. See N.T. PCRA Hearing, 7/13/18, at 5

- 7, 11. Moments later, however, Attorney Crawford suddenly conceded that he could neither remember nor directly testify as to the plea d iscussions involving the Commonwealth. Id . at 11

- 13. Specifically , Attorney Crawford testified that Attorney Weiss had handled these negotia tions with the Commonwealth. As such , Attorney Crawford acknowledged that the Commonwealth may have advanced a pl eaJ

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counter offer that Appellant may not have been informed about

. 1 Id

. Immediately after this disquieting testimony, Appellant and the Commonwealth jointly requested that the PCRA court enter a continu ance to permit further investigation, which the court granted. O n August 1, 2018, Attorney Crawford passed away unexpectedly. A t

a follow

- up hearing , “both [Appellant] and the District Attorney noted they wished to discuss a potential settlement but needed additional time.” Trial Court Opinion, 5/28/20, at 3. Eventually , “the parties informed the [PCRA court] that they had agreed that [Appellant] had been denied effective assistance of counsel during pre

- trial negotiations,” and the Commonwealth

concur red in Appellant receiving some manner of relief unde r the PCRA

. Id

. Specifically, t he parties proposed that Appellant ’s conviction be vacated. Thereafter, he would plead guilty to certain charges and, in return, receive an aggregate sentence of ten to twenty

- five years of incarceration followed by twenty years of probation. Id

. The PCRA court provided the parties with an opportunity to file briefs in support of this proposed resolution, but did not contemplate any additional hearings or amended filings. Thereafter, the PCRA court provided a number

_________________ __________ ______ ____ _______ 1 Prior to disclaiming responsibility for the plea negotiations during his muddled testimony, Attorney Crawford averred that he had made an initial offer to the Commonwealth that Appellant would plead guilty in exchange for a total sentence of “five years” of incarceration. See N.T. PCRA Hearing, 7/13/18, at 13. Although Attorney Crawford initially testified that the Commonwealth refused this offer without tendering a counteroffer, he immediately backtracked by disclaiming that he did not handle the negot iations directly. Id . at 13

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of ex tensions for the completion of this supplemental briefing. However, the parties ultimately averred that they were unable to “to find authority to support the agreed upon disposition proposed to the [PCRA court] on October 2, 2018, since the evidence [had] not been fully developed on the issue of ineffectiveness of counsel during pre

- trial representation.” See Joint Motion for Reconsideration, 5/2/19, at ¶ 22. Thus, the parties requested that the PCRA court “reconvene the evidentiary hearing for the parti es to present additional evidence to the Court upon which a ruling on all of the claims of ineffective assistance of counsel could be based.” Id . at ¶ 26. On July 12, 2019, the PCRA court denied this joint petition for a new evidentiary hearing . On Augus t 14, 2019, Appellant filed a motion for reconsideration requesting, inter alia , leave to amend his PCRA petition to include these allegations concerning the ineffectiveness of trial counsel. See Appellant’s Motion for Reconsideration, 8/14/19, at ¶ 31. This filing also noted the marked deficiencies in the incomplete testimony from the PCRA hearing. Id . at ¶ 29 (“Notably, examination of former [DA] Higgins never occurred nor did counsel question [Attorney Weiss], who also represented [Appellant] and who [Attorney Crawford] indicated was involved in pre

- trial negotiations.”). This motion was also denied by the PCRA court. On July 12, 2019, the PCRA court entered an order and memorandum opinion denying Appellant’s petition. After Appellant ’s counsel initi ally failed to file an appeal, the PCRA court reinstated h i s appe llate rights nunc pro tunc due to ineffective assistance

. This timely appeal followed. Both Appellant and the PCRA court have compliedJ

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with their respective requirements pursuant to Pa.R.A.P. 1925. Appellant has presented the following issues for our consideration: 2 1. Whether the PCRA court erred in closing the evidentiary record and dismissing [Appellant’s] PCRA petition without afford ing [Appellant] the opportunity to testify or present the testimony of [Attorney Weiss] and [DA Higgins]? 2. Whether the PCRA court erred in dismissing [Appellant’s] PCRA petition without affording him the opportunity to amend his petition in writing to include his claim that trial counsel was ineffective in failing to inform [Appellant] of the Commonwealth’s plea offers, which was based on testimony revealed during the testimony of trial counsel during the PCRA proceedings? Appellant’s brief at 7. These issues are closely interrelated, and we wil l discuss them collectively below. In reviewing these issues, we are mindful of the following basic legal principles that will guide our adjudication : Our standard of review in a PCRA appeal requires us to determine whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error. The scope of our review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the party who pre vailed before the court. . . . The PCRA court’s factual findings and credibility determinations, when supported by the record, are binding upon this Court. . . . However, we review the PCRA court’s legal conclusions de novo

. Commonwealth v. Small , 238 A .3d 1267, 1280 (Pa. 2020) (internal quotation marks and citations omitted).

_________________ __________ ______ ____ _______ 2 The Com monwealth has not filed a brief or participated in this appeal.J

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In his first issue , Appellant has challenged the PCRA court’s denial of his serial requests to supplement the evidentiary record with an additional hearing

. See Appellant’s brief at 19

- 20. R ule of Criminal Procedure 908 (“Hearing”) , govern s this issue and provides, in pertinent part, as follows: (A) Except as provided in Rule 907, the judge shall order a hearing:

. . . (2) when the petition for post

- conviction relief or the Commonwealth’s answer, if any, raises material issues of fact. However, the judge may deny a hearing on a specific issue of fact when a full and fair evidentiary hearing upon that issue was held at trial or at any proceeding before or after trial. The judge shall schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation, and shall enter such interim orders as may be necessary in the interests of j ustice. (B) The judge, on petition or request, shall postpone or continue a hearing to provide either party a reasonable opportunity, if one did not exist previously, for investigation and preparation regarding any new issue of fact raised in an amended p etition or amended answer.

. . . (D) Upon the conclusion of the hearing the judge shall determine all material issues raised by the defendant’s petition and the Commonwealth’s answer . . . .
Pa.R.Crim.P. 908. Rule 908 esta blishes that “a PCRA court sho uld hold an evidentiary hearing where a PCRA petition raises any material issues of fact.” Commonwealth v. Edmiston , 851 A.2d 883, 889 (Pa. 2004). Overall, w e conclude that the material ity of the troubling testimony at the PCRA hearing is largely self

- ev ident

. Attorney Crawford’s testimony hasJ

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raised a lingering uncertainty as to whether Appellant ’s trial counsel kept him appropriately informed regarding plea offers from the Commonwealth. Commonwealth v. Copeland , 554 A.2d 54 (Pa.Super. 1988) , is instru ctive as to the propriety of granting an evidentiary hearing in this context

. Copeland was convi cted of first

- degree murder. On appeal, he alleged that trial counsel was ineffective by failing to i nform him of an offer from the Commonwealth that would have permitted him to enter an open guilty plea to third

- degree murder. Reviewing the case, t his Court observed that, “[t]he prevailing view among courts which have considered this issue is that couns el has a duty to inform his client of tendered plea agreements and may be found ineffective for failing to do so.” Id

. at 60. Thus , we held that “there is arguable merit in appellant’s contention that counsel was ineffective for failing to tell him of th e plea agreement which the Commonwealth had offered.” Id

. at 61. Accordingly , we remanded “for an evidentiary hearing on appellant’s claim that trial counsel was ineffective for failing to disclose to him that a plea agreement had been offered by the Com monwealth.” Id

. While Copeland does not explicitly discuss the materiality standard under Pa.R.Crim.P. 908, it relied upon precedent providing that “[w]hen an arguable claim of ineffective assistance of counsel has been made,” this Court “shall” remand “ to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim[.]” Copeland , supra at 61. Applying this reasoning to the case atJ

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bar , Attorney Crawford’ s testimony and the parties’ applications clearly raised

a material issue of fact , i.e ., whether Appellant was misinformed regarding plea offers from the Commonwealth. 3 T he trial court erred by denying the parties’ requests for a follow

- up evidentiary hearing

. 4 Accord Copeland , supra at 60

- 61 ; see also , e.g. , Commonwealth v. Hart , 199 A.3d 475, 482 (Pa.Super. 2018) (holding that where there are “disputed factual issues,” the PCRA court was required to hold an evidentiary hearing “as a matter of law”) (citing Pa.R.Crim.P . 908(A)(2)). Accordingly , we will vacate the underlying orde r in this case and remand for a supplemental evidentiary h earing consistent with this memorandum

.

_________________ __________ ______ ____ _______ 3 The Dissent suggests that we may overlook the deficiencies in the record below and proceed to an immediate merits analysis, correctly observing Ap pellant’s claim of ineffectiveness is still subject to the requirement that a petitioner establish prejudice in order to obtain relief. Accord Commonwealth v. Chazin , 873 A.2d 732, 736 (Pa.Super. 200 5). Respectfully, t he Dissent’s logic does not have an appropriate appreciation for the impact that the paucity of the factual record below has had upon the pleadings in this case. We perceive any deficiencies in Appellant’s allegations of ineffectiveness to be tied inextricably to the PCRA court’s erroneous refusal to permit additional fact

- finding or amendatory filings

. Accordingly, w e will not speculate as to the potential merits of these issues until Appellant’s claim for relief has had a full and fair hearing

.
4 Rule 908(D) only permits the PCRA court to issue a determination of the “material issues” in a case at the “conclusion” of a hearing. Pa.R.Crim.P. 908(D). W e are not convinced that a half

- finished proceeding satisfies the requirement of a “full and fair evidentiary hearing” contemplated by the Pennsylvania Rules of Criminal Procedure. Cf . Pa.R.Crim.P. 908(A)(2).J

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Due to the nature of our disposition, we will not address Appellant’s second issue concerning am endment of his PCRA petition. 5 Order vacated. Remand with instructions. Jurisdiction relinquished. Judge McCaffery joins the memorandum. Judge Colins files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/10/2021

_________________ __________ ______ ____ _______ 5 The PCRA court has not offered any justification for denying leave to amend, aside from referencing the approximately six

- month period during which the parties unsuccessfully pursue d a brokered solution to Appellant’s case. While this delay is unfortunate, we do not believe that overlooking a potential issue of effective representat ion is an acceptable solution. See Commonwealth v. Crisp , 193 A.3d 919, 930 (Pa. 2018) (“Adherence to this liberal standard for amendment is essential because criminal defendants may have just one opportunity to pursue collateral relief in state court.”).