J-S43010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SERGIO BENSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 684 EDA 2022

Appeal from the PCRA Order Entered March 3, 2022

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

No(s): CP-51-CR-0001891-2014

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 21, 2023

Appellant, Sergio Benson, appeals from the March 3, 2022 order that 

denied his petition for collateral relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. In addition, Appellant’s appointed 

counsel, Stephen O’Hanlon, Esq. (“PCRA Counsel”), has filed a Motion to 

Withdraw as Counsel and an accompanying Turner/Finley1 “no-merit” Brief. 

After review, we vacate and remand for further proceedings.

On November 19, 2013, the Commonwealth charged Appellant with 

Murder and Possessing an Instrument of Crime (“PIC”) for the stabbing death 

of Antonio Rivera (“Victim”). Police arrested Appellant after he was identified 

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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.3d 213 (Pa. Super. 1988) (en banc).
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on surveillance video stabbing Victim and gave an inculpatory statement to 

police. 

On January 23, 2018, Appellant entered a negotiated guilty plea to 

Third-Degree Murder and PIC and the court sentenced him to an aggregate 

sentence of 20 to 40 years’ incarceration. Joshua M. Briskin, Esq. (“Plea 

Counsel”) represented Appellant during the plea proceedings. No appeal 

followed.

Appellant filed a timely pro se PCRA petition. After the PCRA court 

appointed counsel to represent Appellant, PCRA Counsel filed an amended 

petition asserting that Plea Counsel had been ineffective. Specifically, the 

petition averred that Appellant requested that Plea Counsel file an appeal and 

Plea Counsel failed to do so. 

On March 3, 2022, the PCRA court held an evidentiary hearing. 

Appellant testified on his own behalf and was the only witness. In sum, 

Appellant testified that Plea Counsel informed Appellant that he had 

communicated with the Philadelphia District Attorney’s (“DA”) Office to secure 

a sentence of 10 to 20 years of imprisonment for Appellant. Specifically, 

Appellant testified that Plea Counsel asked him for an extra $10,000 on top of 

his $20,000 retainer because he had set up a “clandestine meeting” with the 

then-district attorney and a supervising assistant district attorney (“ADA”) and 

had paid them off in return for the 10- to 20-year deal. N.T. PCRA Hearing, 

3/3/22, at 19-20. Appellant further testified that at the plea hearing, Plea 

Counsel recommended that he accept the plea offer of 20 to 40 years and said 
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“don’t worry” about the inconsistency with the alleged agreed-upon term

because Plea Counsel would contact the DA’s office after the plea was entered 

to “take care of it” by contacting the supervising ADA and/or filing for 

reconsideration or an appeal. Id. at 17-18. Appellant explained that a week 

after the plea hearing, Plea Counsel informed him that the supervising ADA 

had been fired and “the deal is out the window.” Id. at 19. Finally, and most 

relevant to our disposition here, Appellant testified that he asked Plea Counsel 

to file an appeal and Plea Counsel failed to do so. Id. at 28.

Notably, neither Appellant nor the Commonwealth called Plea Counsel 

as a witness, even though the PCRA court had contacted Plea Counsel via 

telephone at the start of the hearing to confirm his availability.

At the end of the PCRA hearing, the PCRA court found Appellant’s 

“testimony to be completely incredible” and denied Appellant’s PCRA petition. 

Id. at 41. 

Appellant timely appealed. PCRA Counsel filed a Pa.R.A.P. 1925(c)(4)

statement of intent to withdraw. The PCRA court filed a “Notice of Compliance 

With Rule of Appellate Procedure 1925(A),” which relied on the court’s reasons 

stated on the record at the conclusion of the PCRA hearing to support its 

decision. 

In this Court, PCRA Counsel filed a Turner/Finley Brief, and raised the 

following issue:

The PCRA court’s dismissal of Appellant’s PCRA Petition was not 

supported by the record and free from legal error because 

Appellant requested that a direct appeal be filed by Plea Counsel
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[who] told Appellant what to say during the oral guilty plea 

colloquy and Appellant should have had a 10 to 20 year sentence 

that was agreed to by [Plea Counsel] and former district attorneys 

[]. 

Turner/Finley Br. at 3. Plea Counsel also filed a motion to withdraw as 

counsel. 

In response to Plea Counsel’s Turner/Finley Brief, Appellant filed a pro 

se Brief for Appellant. In his brief, pro se Appellant raises various issues for 

our review.

2

 Dispositive of the instant case is Appellant’s averment that PCRA

Counsel was ineffective. Appellant’s Br. at 6. Specifically, Appellant argues 

that PCRA counsel was ineffective for failing to present Plea Counsel’s 

testimony during Appellant’s PCRA hearing. Id.

We presume that counsel has rendered effective assistance.

Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019). To 

overcome this presumption, a petitioner must establish that: (1) the 

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for 

his act or omission; and (3) petitioner suffered actual prejudice.

Commonwealth v. Bradley, 261 A.3d 381, 390 (Pa. 2021). 

Appellant’s assertion—that PCRA Counsel was ineffective for failing to 

properly present evidence to prove Plea Counsel’s ineffectiveness—presents a 

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2 Appellant asserts that PCRA Counsel failed to comply with the 

Turner/Finley requirements, that he was denied his constitutional right to a 

direct appeal, and that he did not knowingly, intelligently, and voluntarily 

enter his guilty plea due to his impaired mental condition at the time of the 

plea. Appellant’s Br. at 2. 
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layered ineffectiveness claim. “Where a petitioner alleges multiple layers of 

ineffectiveness, he is required to plead and prove, by a preponderance of the 

evidence, each of the three prongs of ineffectiveness relevant to each layer of 

representation.” Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 

2022). “In determining a layered claim of ineffectiveness, the critical inquiry 

is whether the first attorney that the defendant asserts was ineffective did, in 

fact, render ineffective assistance of counsel. If that attorney was effective, 

then subsequent counsel cannot be deemed ineffective for failing to raise the 

underlying issue.” Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. 

Super. 2010).

Relevant here, our Supreme Court has held that “where there is an

unjustified failure to file a requested direct appeal, the conduct of counsel falls 

beneath the range of competence demanded of attorneys in criminal cases.”

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (footnote

omitted). This “denies the accused the assistance of counsel guaranteed by 

the Sixth Amendment to the United States Constitution and Article I, Section

9 of the Pennsylvania Constitution, as well as the right to direct appeal under 

Article V, Section 9[.]” Id. The Supreme Court concluded that this constitutes 

prejudice and per se ineffectiveness for PCRA purposes. Id.

Before a court will find ineffectiveness of trial counsel for failing to file a 

direct appeal, however, Appellant must prove that he requested an appeal and 

that counsel disregarded this request. Commonwealth v. Touw, 781 A.2d
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1250, 1254 (Pa. Super. 2001). If proven, a defendant is entitled to 

reinstatement of his appellate rights. Lantzy, 736 A.2d at 572. 

Finally, where an appellant raises a claim of PCRA counsel 

ineffectiveness for the first time on appeal, this Court has “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 

403. We will remand “where there are material facts at issue concerning 

claims challenging counsel’s stewardship and relief is not plainly unavailable 

as a matter of law[.]” Id. at 402 (citation and internal alteration omitted). 

Additionally, we are mindful of the “general rule” that “a lawyer should not be 

held ineffective without first having an opportunity to address the accusation 

in some fashion.” Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 

2010), overruled on other grounds, Bradley, 261 A.3d 381.

After careful review, we determine that remand is necessary for further 

development of the record. Instantly, this Court’s analysis of Appellant’s claim 

of PCRA counsel’s ineffectiveness must begin with a determination of whether

Appellant requested Plea Counsel to file a direct appeal. As explained above, 

the PCRA court did not hear testimony from Plea Counsel during the PCRA 

hearing. Rather, PCRA Counsel only presented testimony from Appellant, 

which the court found to be wholly incredible. See N.T. PCRA Hearing, 3/3/22, 

at 41; Opinion, 7/16/22, at 1. 

In light of Appellant’s new claim that PCRA Counsel provided ineffective 

assistance by failing to call Plea Counsel as a witness during the PCRA hearing,
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we are unable to evaluate whether the PCRA court erred in dismissing 

Appellant’s petition alleging Plea Counsel’s ineffectiveness. Since we cannot 

analyze the PCRA Court’s disposal of Appellant’s original claim that Plea 

Counsel was ineffective, we are likewise unable to review Appellant’s new 

claim that PCRA Counsel was ineffective. 

For this reason, we vacate the order denying PCRA relief and remand to 

the PCRA court for further development of the record. Specifically, the PCRA 

Court should determine whether PCRA counsel should have called Plea Counsel 

to testify during the PCRA hearing to ascertain if Plea Counsel was per se

ineffective. Accordingly, we direct the PCRA court to appoint new PCRA 

counsel for Appellant, hold a supplemental hearing, and conduct such further 

proceedings as necessary to address Appellant’s layered claims of ineffective 

assistance of both Plea Counsel and PCRA Counsel.

3

 PCRA Counsel’s petition 

to withdraw as counsel is granted to allow him to be a potential witness upon 

remand.

Order vacated. Petition to withdraw granted. Case remanded. 

Jurisdiction relinquished. 

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3 The PCRA court may, if necessary, allow Appellant’s new PCRA counsel to 

file a supplemental PCRA petition to adequately address Plea Counsel and 

PCRA Counsel’s effectiveness.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2023