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2018 PA Super 239

COMMONWEALTH OF PENNSYLVANIA

v.

COREY M. DURRETT KING

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

PENNSYLVANIA

No. 17 WDA 2017 Appeal from the PCRA Order December 13, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0010053

- 2013

BEFORE: BOWES , J., DUBOW, J., and MURRAY, J.

CONCURRING AND DISSENTING OPINION BY BOWES, J.:
FILED AUGUST 28, 2018 While I agree with the learned Majority’s conclusion that the PCRA court

erred in dismissing Appellant’s PCRA petition , I do not believe that an evidentiary hearing is required to determine whether trial counsel had a
reasonable basis for not raising the defense for fleeing or attempting to elude
police officer set forth in Section 3733(c)(1). Instead, as the record clearly

establishes that the omission of trial counsel had no reasonable basis , I believe

that relief s hould be granted, and the case should simply be remanded for a

new trial. In my view, the Majority correctly determined that a police vehicle’s “lights and siren” do not constitute “markings” for purposes of determining
whether a police vehicle is “unmar ked” under 75 Pa.C.S. § 3733(c)(1), and,J

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consequently, that Appellant’s underlying claim that trial counsel was
ineffective fo r failing to raise the defense has merit. I also agree with the Majority’s finding that Appellant suffered prejudice as a result of t rial counsel’s

failure to raise the defense

. On the record before us, I believe that an evidentiary hearing to afford
trial counsel an opportunity to explain why he did not raise the defense is

unnecessary. While I am mindful of our Supreme Court’s p reference for a
hearing on counsel ’ s strategy before venturing to hold that counsel lacked a

reasonable basis for his or her actions or inactions , it is not a mandatory rule
to be applied in all cases. See Commonwealth v. Colavita , 993 A.2d 874,

895 (Pa. 2010) (“As a general rule , a lawyer should not be held ineffective
without first having an opportunity to address the accusation in some fashion.”) (emphasis added); see also Commonwealth v. Turner , 365 A.2d
847, 849 ( Pa. 1976) (“ Where

. . . it is impossible to tell from the record
whether or not the action of trial counsel could have had a rational basis,

. . . remand for an evidentiary hearing at which trial counsel may state his reasons
for having chosen the course of action taken

. . . ” is appro priate ) (emphasis
added).
Our High Court has held that a hearing is not required when the record
on appeal clearly shows that there could have been no reasonable basis for

counsel ’s inaction. See Commonwealth v. McGill , 832 A.2d 1014, 1022
( Pa. 2003) ( hol ding that when the record clearly establishes that the act orJ

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omission of trial counsel was without a reasonable basis , this C ourt may resolve the reasonable basis prong absent a remand for an evidentiary hearing

as to counsel ’ s strategy ) ; accord Turner , supra at 849 (holding that no evidentiary hearing is necessary “[w] here the record on appeal clearly shows
that there could have been no reasonable basis for a damaging decision or
omission by trial counsel ”).
In the instant case, the record on appeal cl early shows that there could

have been no reasonable basis for trial counsel ’s failure to raise the defense

for fleeing or attempting to elude police officer set forth in Section 3733(c)(1).
As the Majority observes , There is no dispute in this matter th at the car at issue did not display any decals or graphics identifying it as a police vehicle. The testimony at trial of the detectives who arrested Appellant unequivocally indicates that they were driving an unmarked police vehicle that only had lights a nd a siren. Additionally, the record reflects that at the time they were pursuing Appellant, the detectives were not in uniform, but were in plain clothes.
Majority Opinion at 10

- 11 (citation to record omitted). On this basis, the
Majority held that b ecause the police vehicle that pursued Appellant was

unmarked , and the officers inside that unmarked vehicle were not in uniform, Appellant’s claim regarding the defense of Section 3733(c)(1) has merit , and Appellant was prejudiced by trial counsel’s inact ion. Id

. This jurist cannot imagine any reasonable basis for trial counsel not to

raise a statutorily

- provided defense to which his client is unquestionably

entitled to assert. See Colavita , supra at 887 (“A finding that a chosenJ

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strategy lacked a reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success substantially
greater than the course actually pursued. ”). Requiring the PCRA court to
conduct another evidentiary hearing , the out come of which would be a
foregone conclusion, would be a waste of judicial resources and is unnecessary under the circumstances presented here in

. See Commonwealth v. Schultz , 484 A.2d 146 , 148 n. 4 ( Pa.Super. 1984) ( granting new trial rather than
evidentiary hearing, where this C ourt f ound counsel ’ s actions were
unsubstantiated , and a remand for an evidentiary hearing would be a waste

of precious judicial time). For this reason, I would simply grant relief, and

remand the cas e for a new trial.