J-S18019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD A. PRICE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 495 EDA 2022

Appeal from the PCRA Order Entered February 3, 2022

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

No(s): CP-51-CR-0008805-2018

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JUNE 30, 2023

Appellant, Richard A. Price, appeals from the February 3, 2022 Order 

dismissing his first Petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-46, as meritless. Appellant claims that his plea 

counsel provided ineffective assistance and, as a result, Appellant entered his 

guilty plea involuntarily and unknowingly. After careful review, we reverse and 

remand for further proceedings.

The relevant facts and procedural history are as follows. On December 

4, 2018, the Commonwealth filed a Criminal Complaint against Appellant

charging him with 17 counts related to his sexual assault of a minor. Due to 

several factors, including delays in processing DNA evidence and the victim’s 

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* Former Justice specially assigned to the Superior Court.
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failure to appear in court, there were numerous continuances granted for the 

trial. Once the DNA evidence was processed, there was insufficient data to 

determine if DNA material found in the victim’s underwear originated from 

Appellant, but he was not excluded as a contributor.

On October 21, 2019, Appellant entered a guilty plea to one count of 

Indecent Assault of a Person Less than 16 Years Old and one count of Unlawful 

Contact with a Minor1in exchange for which the Commonwealth nolle prossed 

the other charges. On the same day, the trial court sentenced Appellant to an 

aggregate term of 111⁄2 to 23 months of imprisonment, followed by 3 years of 

probation. Appellant was immediately paroled, having already served 111⁄2 

months. Appellant did not file a post-sentence motion or an appeal from his 

Judgment of Sentence.

On March 5, 2020, the Commonwealth arrested Appellant for a 

probation violation. On March 13, 2020, the court (“VOP court”) held a hearing

after which it found that Appellant had violated the term of his probation 

requiring that he attend drug treatment. The VOP court imposed a sentence 

of 111⁄2 to 23 months of imprisonment, followed by 5 years of probation.

On June 23, 2020, Appellant timely filed the instant PCRA petition pro 

se, claiming that his guilty plea was unlawfully induced because he was not 

informed of DNA evidence results that may have exonerated him. Petition, 

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1 18 Pa.C.S. §§ 3126(a)(8), 6318(a)(1), respectively.
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6/23/20, at 2-3. The PCRA court appointed counsel who filed an Amended 

PCRA Petition developing Appellant’s argument that plea counsel had provided 

ineffective assistance that caused Appellant to enter an involuntary and 

unknowing plea. Amended Petition, 4/6/21, at 6. In particular, Appellant 

asserted that plea counsel failed to disclose the results of the DNA analysis 

and erroneously advised Appellant to opt for the plea and resulting immediate 

release rather than risk facing a “hanging judge.” Id. at 10.

On November 1, 2021, the PCRA court provided notice of its intent to 

dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.

2 Appellant did 

not respond. On January 12, 2022, the PCRA court dismissed Appellant’s 

petition without a hearing. 

This appeal followed. Both Appellant and the PCRA court have complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether the [PCRA] court erred in not granting relief on the PCRA 

petition alleging counsel was ineffective[?]

2. Whether [t]rial [c]ounsel’s assistance was ineffective for causing the 

Appellant to enter an involuntary or unknowing plea[?]

Appellant’s Br. at 7.

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2 The lower court opined that the PCRA Petition was untimely filed before 

addressing the merits of the claims raised. See Notice of Intent to Dismiss 

pursuant to Pa.R.Crim.P. 907, 1/12/2020, at 2. Our review indicates, however,

that Appellant’s PCRA petition was timely filed on June 23, 2020, within one 

year of the date the judgment became final. 42 Pa.C.S. § 9545(b)(1). 
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We review a PCRA court’s decision to deny a request for an evidentiary 

hearing for an abuse of discretion. Commonwealth v. Mason, 130 A.3d 601, 

617 (Pa. 2015). Where a PCRA Petition raises “material disputes regarding the 

reasonableness of counsel’s actions, a hearing is required.” Commonwealth 

v. Reid, 99 A.3d 470, 501 n.26 (Pa. 2014); see also Pa.R.Crim.P. 908(A)(2) 

(requiring a PCRA hearing “when the petition for post-conviction relief . . . 

raises material issues of fact”). Additionally, our Supreme Court has expressed 

a preference for an evidentiary hearing on counsel’s action or inaction where 

a petitioner has raised “a colorable claim” of ineffectiveness. Commonwealth 

v. Cousar, 154 A.3d 287, 299 (Pa. 2017).

To succeed on a claim of ineffective assistance of counsel, Appellant 

must demonstrate that (1) the underlying claim is of arguable merit; (2) 

counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness 

of counsel caused the appellant prejudice. Commonwealth v. Wah, 42 A.3d 

335, 338 (Pa. Super. 2012). “[A]llegations of ineffectiveness in connection 

with the entry of a guilty plea will serve as a basis for relief only if the 

ineffectiveness caused the defendant to enter an involuntary or unknowing 

plea.” Id. (citation omitted). “Where the defendant enters his plea on the 

advice of counsel, the voluntariness of the plea depends on whether counsel’s 

advice was within the range of competence demanded of attorneys in criminal 

cases.” Id. (citation omitted).

Appellant argues that plea counsel was ineffective because plea counsel 

failed to disclose DNA reports which could have exonerated Appellant. 
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Appellant’s Br. at 13. Appellant claims that “had he been aware of the [DNA] 

reports, he never would have pled guilty.” Id. at 14. Additionally, Appellant 

asserts that plea counsel urged Appellant to take the plea so that Appellant 

could be immediately released, rather than face a “hanging judge,” further jail 

time, and additional continuances of the trial. Id. at 13-14. 

The PCRA court reasoned that Appellant’s ineffective assistance of 

counsel claim lacked merit because Appellant “stated at his guilty plea that he 

was very satisfied with his counsel” and indicated no deficiencies in either his 

written guilty plea colloquy or the oral colloquy. PCRA Ct. Op., 8/4/22, at 5-

6. Further, the court reiterated that in exchange for Appellant’s guilty plea,

the Commonwealth nolle prossed all remaining charges and Appellant was 

immediately paroled, indicating that plea counsel’s advice had a reasonable 

basis. Id. at 6. The PCRA court concluded that Appellant had not shown that 

“counsel’s advice was unreasonable or that he entered the plea unknowingly.” 

Id.

After reviewing the record and case law, we conclude that Appellant 

presents a colorable claim of ineffectiveness and a material dispute regarding 

plea counsel’s actions. While it may be true that the actions of plea counsel 

resulted in immediate release from custody, Appellant indicates that he only 

opted for immediate release due to the uncertainty caused by the multiple 

continuances granted due to victim’s failure to appear in court and the delays 

in DNA processing. Id. at 13. Appellant “had been in jail for eleven months[,]

. . . was sick due to his diabetes,” and took the plea on the advice of plea 
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counsel to avoid further continuances. Id. Additionally, Appellant claims that 

while trial counsel informed Appellant that DNA reports were not available at 

the time of the guilty plea, the reports had in fact been completed months 

earlier. Id. at 14. 

Under these circumstances, the certified record and Appellant’s petition 

indicate an outstanding question of fact as to when Appellant and plea counsel 

learned of the DNA evidence and whether ineffective assistance of counsel 

prejudiced Appellant. To resolve these questions, the PCRA court must make 

a credibility determination weighing the evidence set forth in Appellant’s 

petition and related testimony, as well as plea counsel’s recollection of events.

Since neither this Court nor the PCRA court could resolve these factual 

questions based on the information in the certified record alone, a hearing is 

necessary. We, therefore, reverse the PCRA court’s order dismissing 

Appellant’s claim of ineffective assistance of plea counsel, and remand to the 

PCRA court to hold an evidentiary hearing.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/30/2023