J-S38004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAINE ARCH MCCARTY

Appellant No. 117 MDA 2015

Appeal from the PCRA Order of December 19, 2014

In the Court of Common Pleas of York County

Criminal Division at No.: CP-67-CR-0007566-2010

BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 17, 2015

Shaine Arch McCarty appeals the December 19, 2014 order dismissing 

his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-46. Appointed appellate counsel for McCarty, Jennilee M. Kemling, 

Esq., has filed with this Court a Turner/Finley1 brief and a petition to 

withdraw as counsel. Because we disagree with Attorney Kemling that there 

are no meritorious issues to present on appeal, we deny her petition to 

withdraw, and we remand for the preparation of an advocate’s brief on 

McCarty’s behalf.

____________________________________________

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

Commonwealth v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S38004-15

- 2 -

On December 5, 2010, McCarty was involved in an altercation with 

Samantha Bowling and others at a gathering of friends and acquaintances at 

two apartments in the same building. Ms. Bowling and others testified that 

the fight arose after McCarty entered an apartment, insulted them profanely, 

then left. Ms. Bowling and another witness testified that they followed 

McCarty out into a common area behind the courtyard to confront him. 

Ms. Bowling maintained that her demeanor was civil, and that, when 

McCarty turned his back on her, she merely touched his shoulder to get his 

attention. He responded by grabbing her by the hair and slamming her face 

into a nearby structural pillar or pole several times, inflicting a gash to her 

head that required eight stitches to close, breaking her nose, and causing 

her severe discomfort in her chest that required her to return to the hospital 

two days after her initial treatment.

Although the defense introduced no testimony or evidence, trial 

counsel Ronald J. Gross, Esq., argued to the jury in closing that McCarty 

acted in self-defense. Attorney Gross acknowledged that McCarty in fact 

insulted the women, and that he spit on Ms. Bowling’s friend outside the 

apartment when she accosted him. But he argued that when McCarty 

turned his back on the women, Ms. Bowling jumped on his back, struck him, 

and bit him several times on the head. McCarty then threw Ms. Bowling off 

his back and she struck her face on the pole. Photographs taken by 

responding officers at the scene confirmed that McCarty had sustained what 

appeared to be bite wounds to his head.
J-S38004-15

- 3 -

McCarty was arrested and released on bail the same day that the 

altercation occurred. Ms. Bowling also was cited for harassment under 18 

Pa.C.S. § 2709(a)(1) (“A person commits the crime of harassment when, 

with intent to harass, annoy or alarm another, the person . . . strikes, 

shoves, kicks or otherwise subjects the other person to physical contact, or 

attempts or threatens to do the same.”), a summary offense to which she 

admitted pleading guilty. However, she suggested that she did so as a 

convenience, maintaining that she had not jumped on McCarty’s back or bit 

his head. See Notes of Trial Testimony (“N.T.T.”), 2/6-7/2012, at 150 

(testifying that she pleaded guilty because the arresting officer told her that 

“[she] had to,” but denying that she had jumped on McCarty’s back or bit his 

head).

On February 7, 2012, a jury found McCarty guilty of aggravated 

assault, 18 Pa.C.S. § 2702(a)(1), and simple assault, 18 Pa.C.S. 

§ 2701(a)(1). The trial court from the bench found McCarty guilty of 

summary harassment, 18 Pa.C.S. § 2709(a)(1). On April 16, 2012, the trial 

court sentenced McCarty to seven to fourteen years’ imprisonment for 

aggravated assault, with no further penalty imposed for simple assault. For 

McCarty’s harassment conviction, the court imposed an additional ninety-day 

sentence to run concurrently with his sentence for aggravated assault. 

McCarty timely appealed, and this Court affirmed his judgment of sentence 

on April 25, 2013. Commonwealth v. McCarty, No. 1626 MDA (Pa. 

Super. 2012) (unpublished memorandum).
J-S38004-15

- 4 -

On August 21, 2013, McCarty filed a pro se PCRA petition. On August 

29, 2013, the PCRA court appointed Joshua E. Neiderhiser, Esq., as counsel 

for McCarty. On November 8, 2013, Attorney Neiderhiser filed an amended 

PCRA petition raising various claims of constitutionally ineffective assistance 

of counsel (“IAC”). Specifically, McCarty contended that Attorney Gross was 

ineffective for failing to adduce the testimony of Brandy Lehr (née

Dellapenna), Polytimi Stump (née Skouras), Terry McCarty, and Justin 

Walters. He also alleged that Attorney Gross was ineffective for failing to 

convey to McCarty a favorable plea bargain offered by the Commonwealth 

and for suggesting to McCarty that, if McCarty tendered an additional 

payment to Attorney Gross, Attorney Gross could keep him out of prison.

Pursuant to Pa.R.Crim.P. 908, the PCRA court held an evidentiary 

hearing on May 23, 2014, at which Attorney Gross, Mrs. Lehr, Mrs. Stump, 

and Terry McCarty testified. Because Mr. Walters died before the hearing, 

the court admitted a notarized statement by Mr. Walters detailing the 

substance of the testimony that he would have provided at trial, had he 

been called. 

On December 19, 2014, the PCRA court denied McCarty’s PCRA 

petition in an opinion and order, reasoning that trial counsel was not 

ineffective for failing to call the above-mentioned witnesses to the events 

underlying McCarty’s convictions. PCRA Court Opinion (“P.C.O.”), 

12/19/2014, at 2-7. Specifically, the PCRA court found that the proposed 

testimony of Mrs. Lehr, Mrs. Stump, and Terry McCarty would not have 
J-S38004-15

- 5 -

provided the jury with any additional information. Thus, Attorney Gross’ 

decision not to call these witnesses was not detrimental to McCarty’s 

interest. Id. at 2-5. The PCRA court, contradicting its in-court ruling 

without explanation, found that it could not consider Mr. Walters’ notarized 

statement because the statement was hearsay that was not subject to any 

of the exceptions set forth in Pa.R.E. 804(b) (“Exceptions to the Rule Against 

Hearsay—When the Declarant is Unavailable as a Witness”). Id. Because 

the PCRA court concluded that it could not consider the statement that it 

deemed inadmissible, and because Mr. Walters obviously could not testify, 

the court determined that Attorney Gross was not ineffective for failing to 

call Walters as a witness. Id.

On January 13, 2015, McCarty timely filed a notice of appeal from the 

dismissal of his PCRA petition. On January 15, 2015, the PCRA court 

directed McCarty to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On January 30, 2015, appointed 

appellate counsel, Attorney Kemling, entered her appearance on behalf of 

McCarty. McCarty filed his concise statement on February 4, 2015. The 

next day, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a), 

referring this Court to its December 19, 2014 opinion and order. On March 

12, 2015, Attorney Kemling filed a Turner/Finley brief and a petition to 

withdraw as counsel with this Court, in which she averred that she could 

identify no meritorious issues to pursue on appeal. 
J-S38004-15

- 6 -

We first consider whether counsel has complied with the technical 

requirements that our courts have established in order for appointed counsel 

to withdraw pursuant to Turner and Finley. 

Counsel petitioning to withdraw from PCRA representation must 

proceed [under Turner/Finley and] must review the case 

zealously. Turner/Finley counsel must then submit a “nomerit” letter to the [PCRA] court, or brief on appeal to this Court, 

detailing the nature and extent of counsel’s diligent review of the 

case, listing the issues [that] petitioner wants to have reviewed, 

explaining why and how those issues lack merit, and requesting 

permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no 

merit” letter/brief; (2) a copy of counsel’s petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed 

pro se or by new counsel.

* * * *

Where counsel submits a petition and no-merit letter that satisfy 

the technical demands of Turner/Finley, the court—[PCRA] 

court or this Court—must then conduct its own review of the 

merits of the case. If the court agrees with counsel that the 

claims are without merit, the court will permit counsel to 

withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (quoting 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007); Doty’s 

textual modifications omitted for clarity). 

In her brief, Attorney Kemling sets forth the issues of which McCarty 

seeks review. See Brief for McCarty at 4. She also has set forth a thorough 

history of McCarty’s case. Id. at 5-9. Attorney Kemling has reviewed the 

applicable statutes, case law, and rules of procedure, id. at 10-19; she has 

filed a petition for leave to withdraw as counsel; and she has explained why 
J-S38004-15

- 7 -

she believes that McCarty has no meritorious issues to pursue on appeal. 

Id. at 14. Attached to Attorney Kemling’s petition is a copy of the letter she 

sent to McCarty, which advised him of her intent to seek to withdraw as 

counsel; apprised McCarty of his right to retain new counsel or to proceed 

pro se; and provided McCarty with a copy of the Tuner/Finley brief that she 

filed in this Court. Consequently, counsel has complied with 

Turner/Finley’s technical requirements. 

Before deciding counsel’s motion to withdraw, however, we also must 

independently review the record, beginning with the claims raised by 

McCarty. Attorney Kemling has identified three potential issues for our 

review:

1. Whether the [PCRA] court erred in dismissing [McCarty’s] 

PCRA petition where trial counsel failed to call Brandy Lehr, 

Terry McCarty, Polytimi Stump, and Justin Walters as defense 

witnesses at trial?

2. Whether the [PCRA] court erred in dismissing [McCarty’s] 

PCRA petition where trial counsel failed to advise [McCarty] of 

all plea offers prior to going to trial?

3. Whether the [PCRA] court erred in dismissing [McCarty’s] 

PCRA petition where trial counsel told [McCarty] he would 

keep [McCarty] out of jail if he was paid?

Brief for McCarty at 4 (footnote omitted).

In reviewing a PCRA court’s order denying relief, we must assess 

whether the determination of the PCRA court is supported by the evidence of 

the record and is free of legal error. The PCRA court’s findings will not be 
J-S38004-15

- 8 -

disturbed unless there is no support for those findings in the certified record. 

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).

McCarty’s issues all implicate IAC. 

[A] PCRA petitioner will be granted relief [for IAC] only when he 

proves, by a preponderance of the evidence, that his conviction

or sentence resulted from the “[i]neffective assistance of counsel 

which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place.” 

42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and 

to rebut that presumption, the PCRA petitioner must 

demonstrate that counsel’s performance was deficient and that 

such deficiency prejudiced him.” Commonwealth v. Colavita, 

993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we 

have refined the Strickland performance and prejudice test into 

a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 

203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the 

petitioner must show that: (1) his underlying claim is of arguable 

merit; (2) counsel had no reasonable basis for his action or 

inaction; and (3) the petitioner suffered actual prejudice as a 

result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations 

modified). To demonstrate prejudice, the petitioner must establish “that 

there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). A petitioner’s 

failure to satisfy any one element of the test will result in the rejection of his 

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Thus, if 

an appellant is unable to demonstrate prejudice, we need not demonstrate 
J-S38004-15

- 9 -

the other two elements. Commonwealth v. Albrecht, 720 A.2d 693, 701 

(Pa. 1998). 

In his first issue, McCarty claims that trial counsel was ineffective for 

failing to call Mrs. Lehr, Terry McCarty, Mrs. Stump, and Mr. Walters to 

testify at trial. Brief for McCarty at 12. In order to demonstrate that trial 

counsel was ineffective in failing to present the testimony of a witness, the 

petitioner must establish the following factors:

1) [T]he witness existed; 2) the witness was available to testify 

for the defense; 3) counsel knew of, or should have known of, 

the existence of the witness; 4) the witness was willing to testify 

for the defense; and 5) the absence of the testimony of the 

witness was so prejudicial as to have denied him a fair trial.

Commonwealth v. Smith, 675 A.2d 1221, 1230 (Pa. 1996).

Mrs. Lehr, Terry McCarty, and Mrs. Stump all testified at the PCRA 

hearing. Notes of P.C.R.A. Testimony (“N.P.T.”), 5/23/2014, at 25, 38, 47. 

Lehr testified that she was willing and available to testify at trial, and that 

Attorney Gross interviewed her prior to McCarty’s trial. Id. at 26-27. On 

the night in question and at the time of the PCRA hearing, she was McCarty’s 

girlfriend. Id. at 25-26. Although she did not witness the fight itself, she 

would have testified that, as McCarty left the apartment, he was pursued “by 

one girl screaming, do we got a fuckin problem. Exactly those words.” 

Id. at 28. She later testified that the women in question “went flying out 

the door after him.” Id. at 32. In short, her intended testimony would have 

contradicted that of Ms. Bowling and Ms. Bowling’s friend to the effect that 
J-S38004-15

- 10 -

their interaction with McCarty had been civil and would have been consistent 

with the defense’s theory of the case. See N.T.T. at 184 (noting that at 

least two prosecution witnesses attest to yelling, while Ms. Bowling and her 

friend “say that they approached [McCarty] outside. They weren’t yelling, 

they were just inquiring as to why would you use such foul language, that’s 

rude, that’s not nice”).

Terry McCarty, McCarty’s brother, testified at the PCRA hearing that he 

was willing and available to testify at trial, and that Attorney Gross 

interviewed him prior to McCarty’s trial. N.P.T. at 39-40. Mr. McCarty 

testified that he witnessed a person jump onto McCarty’s back and another 

person run past him shortly after that. Id. However, Mr. McCarty did not 

witness more of the altercation, because he was busy subduing the second 

person who ran past him. Id. at 45-46. Thus, Terry McCarty, too, testified 

to observations consistent with the defense’s account of the case and at 

odds with aspects of Ms. Bowling’s and other prosecution witnesses’ 

testimony.

Mrs. Stump testified at the PCRA hearing that she was willing and 

available to testify at trial, and that Attorney Gross interviewed her prior to 

McCarty’s trial. Id. at 48-49. Stump also testified that “she saw somebody 

on [McCarty’s] back from behind and they were beating him, hitting him in 

the head. And then I just saw him take who[m]ever it was and just flicked 

them off into I think there was—it looked like—it was either wood like a deck 
J-S38004-15

- 11 -

pole.” Id. at 50. This testimony also was as consistent with McCarty’s 

theory of the case as the victim’s and her friends’ account of events.

During the PCRA hearing, Attorney Gross testified that McCarty 

provided him with a list of potential witnesses nearly a year before trial. Id.

at 72. Mr. Walters’ name and contact information were included on this list. 

Id. However, at no point did Attorney Gross contact Walters. Id. With 

regard to the other named witnesses, Attorney Gross testified that he at 

least spoke with them briefly, which was corroborated by the potential 

witnesses in question. Id. at 67. He set forth various reasons why he opted 

not to have them testify. See id. at 67-68 (indicating that Terry McCarty 

had seen very little of the relevant events, and that his account was 

“essentially neutral,” and “wasn’t going to completely help disprove what the 

Commonwealth [was] saying”), 68-70 (asserting that Mrs. Lehr corroborated 

Ms. Bowlings’ and her friends’ “aggressiveness” and “yelling”; acknowledging 

that, if she had told the story at trial that she told during the PCRA hearing, 

he would have “called her in a heartbeat”; but suggesting, somewhat 

equivocally, that he did not recall her providing such an account at the 

time), 70 (testifying that when he spoke to Mrs. Stump she told him that she 

was “very intoxicated and she did not see anything”). 

Mr. Walters died before the hearing. Id. at 18. However, before he 

died, Walters’ prepared a notarized statement. Id. During the PCRA 
J-S38004-15

- 12 -

hearing, the PCRA court admitted Walters’ written statement. Id. at 59-60.2 

Walters’ statement detailed his account of the underlying events related to 

McCarty’s conviction. Mr. Walters indicated that he “was ready to testify at 

all court dates. [He] was never contacted by either side in the criminal 

proceedings.” Walters’ Statement, 7/23/2013. Further, Walters’ statement 

set forth facts, which would have supported a jury finding that Ms. Bowling 

struck the first blow and that McCarty acted in self-defense.3 Id. Upon 

learning the content of Walters’ statement, Attorney Gross offered no excuse 

for his failure to contact Walters:

Q: What about Mr. Walters, did you ever speak to Mr. 

Walters?

[ATTORNEY GROSS]: No, I did not. I wish that if he was 

going to say what he allegedly said, that would have been great. 

I just can’t explain why I would not have spoken with him or 

have some arrangement for him to meet me to speak.

____________________________________________

2 As set forth below, the PCRA court effectively disavowed doing so in 

his Rule 1925(a) opinion, despite clearly deciding at the hearing that the 

statement was admissible. Compare P.C.O. at 6 with N.P.T. at 60.

3 Walters account corroborated McCarty’s claim of self-defense.

I saw [Ms. Bowling] on [McCarty’s] back biting his head. I saw 

[McCarty] reach his hands up, lean down and pull her forward

over his head off of him. When [McCarty] did that, 

[Ms. Bowling’s] head hit the porch beam in front of them. 

[Ms. Bowling] fell to the ground and [McCarty] backed up. 

[Ms. Bowling] was knocked unconscious at [this] point. I picked 

her up and carried her into the house.

Mr. Walters’ Statement, 7/23/2013.
J-S38004-15

- 13 -

N.P.T., 5/23/2014, at 72-73.

In summation, Attorney Gross acknowledged that, if the witnesses in 

question had testified at trial, their testimony would have contradicted the 

Commonwealth’s witnesses’ accounts of Ms. Bowling’s demeanor toward 

McCarty and whether Ms. Bowling jumped on his back and bit him. He 

further opined that, if the jury had credited their testimony, the testimony 

would have offered the jury a competing account of the events underlying 

the case. Id. (“If that is believed and [sic] absolutely that would have been 

different than what I—that would have been different than what the jury 

heard.”). 

In her Turner/Finley brief, Attorney Kemling relies upon 

Commonwealth v. Priovolos, 715 A.2d 420 (Pa. 1998), to support her 

conclusion that McCarty cannot show that the omission of Mr. Walters’ and 

the other witnesses’ testimony was prejudicial or lacking a reasonable basis. 

Brief for McCarty at 13-14. In Priovolos, the appellant argued that his 

PCRA counsel was ineffective in failing to present testimony of several 

witnesses at his PCRA evidentiary hearing. 715 A.2d at 421. However, the 

appellant did not substantiate the alleged substance of the witnesses’ 

proposed testimony because the witnesses were either deceased or 

unavailable at the time of the hearing, and no record existed of their 

potential testimony. Id. at 423. Accordingly, the appellant could only 

speculate regarding the witnesses’ possible testimony. Id. The Priovolos

Court found “nothing from the record that indicated that the absence of 
J-S38004-15

- 14 -

testimony from any of these witnesses, either from the PCRA hearing or 

trial, worked prejudice upon [the appellant].” Id. Consequently, the Court 

found that counsel was not ineffective. Id.

IAC claims must be based upon evidence, not sheer conjecture. 

Commonwealth v. Bullock, 415 A.2d 1240, 1241 (Pa. Super. 1979) (per 

curiam). Further, trial counsel’s failure to gather evidence on the 

petitioner’s behalf rises to IAC only if the petitioner substantiates that the 

evidence was available to counsel at trial. Commonwealth v. Stinnett, 

514 A.2d 154, 157 (Pa. Super. 1986). In the instant matter, McCarty 

provided tangible evidence of Walters’ proposed testimony through Walters’ 

written statement, which the PCRA court admitted.4 As well, three other 

potential but uncalled witnesses testified at the PCRA hearing that, had they 

been called at trial, they would have provided an account of events that 

arguably could have swayed the jury in McCarty’s favor. Accordingly, 

counsel’s reliance upon Priovolos is questionable at best: In Priovolos no 

____________________________________________

4 As noted, the PCRA court now maintains that Mr. Walters’ written 

statement is inadmissible hearsay. P.C.O. at 5-6. However, during the 

PCRA hearing the court admitted Mr. Walters’ statement:

[I]t occurs to me it’s admissible. The statement is admissible. 

It’s proof that he made it, which . . . is that the statement is 

simply proof that there is somebody out there that made the 

statement that was not called as a witness.

N.P.T. at 58-60. 
J-S38004-15

- 15 -

such statements or testimony were offered to support the petitioner’s claims 

regarding the proposed witnesses’ availability or the substance of the 

testimony they might have offered.

Commonwealth v. Thomas, 908 A.2d 351 (Pa. Super. 2006), by 

contrast, involved more analogous circumstances. In Thomas, the 

petitioner argued that the PCRA court erred by failing to admit a written 

statement of an unavailable witness to support the claim that his trial 

counsel was ineffective by failing to present that witness at trial. Id. at 353. 

The witness provided appellant’s PCRA counsel with a written statement, 

under penalty of perjury, regarding her proposed testimony, but died before 

the hearing. Id. at 353-54. The PCRA court excluded the statement in part 

because the witness did not record it “before an officer authorized to 

administer oaths.” Id. at 354. In the instant matter, however, Mr. Walters 

did precisely that. 

In this case, the PCRA court admitted Walters’ written statement at 

the evidentiary hearing, which provided evidence of Walters’ willingness and 

ability to testify at trial. N.P.T., 5/23/2014, at 59-60. Furthermore, that the 

statement was notarized distinguishes Thomas, just as the mere existence 

of the notarized statement and the testimony at the PCRA hearing of the 

other witnesses distinguishes Priovolos. Thus, we cannot conclude, based 

upon this record and without the benefit of advocacy, that Mr. Walters’ 
J-S38004-15

- 16 -

statement could not have been admitted.

5

 Furthermore, taken collectively, 

and as Attorney Gross acknowledged, the potential witnesses’ testimony, 

with or without Mr. Walters’ statement, corroborated to varying degrees the 

defense’s alternative account of the altercation. Attorney Gross’ testimony 

also was equivocal as to whether he fully considered the potential value of 

each of these witnesses’ testimony at the time or had a reasonable basis not 

to call each witness at trial. Even if any one of these witness’ accounts 

might not have prejudiced the defense, the PCRA court may consider the 

cumulative prejudicial effect of failing to call them all. See Commonwealth 

v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (“When the failure of individual 

claims is grounded in lack of prejudice, then the cumulative prejudice from 

those individual claims may properly be assessed.”).

Under the instant circumstances, we respectfully disagree with 

Attorney Kemling that Attorney Gross’ failures even to speak with 

Mr. Walters and to call one or more of the testifying witnesses at trial and to 

do so does not establish a claim sufficiently colorable to warrant advocacy. 

We find that there are arguments that Mr. Walters’ written statement either 

was admitted or could have been admitted and that, even without 

____________________________________________

5 The parties and the court appear to agree that, if the statement is 

actually hearsay, it is inadmissible because it is subject to none of the 

exceptions found in Pa.R.E. 804. However, Attorney Neiderhiser maintained 

during the PCRA hearing that the statement was not hearsay in the first 

instance, and the PCRA court appeared to agree following extensive 

discussion.
J-S38004-15

- 17 -

Mr. Walters’ testimony, the sum of the other witnesses’ proposed testimony 

might have created a reasonable probability of a different outcome at trial. 

While we express no opinion regarding the likelihood that such arguments 

should have prevailed before the PCRA court or will prevail before this Court, 

at this juncture it is our duty only to assess independently whether the 

record would support an advocate’s brief in this matter. On the above basis 

alone, we find that it does.

In his second issue, McCarty claims that trial counsel was ineffective 

for failing to advise him of all plea offers prior to going to trial. Brief for 

McCarty at 15. In order to show that trial counsel was ineffective for failing 

to advise him of all plea offers prior to going to trial, McCarty must establish 

the following criteria:

(1) [A]n offer for a plea was made; (2) trial counsel failed to 

inform him of such offer; (3) trial counsel had no reasonable 

basis for failing to inform him of the plea offer; and (4) he was 

prejudiced thereby.

Commonwealth v. Chazin, 873 A.2d 732, 735 (Pa. Super. 2005) (quoting 

Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa. 1988)); cf. Missouri 

v. Frye, 132 S.Ct. 1399, 1408 (U.S. 2012) (holding that defense counsel 

has a duty to convey and explain all plea offers extended by the 

prosecution); Lafler v. Cooper, 132 S.Ct. 1376, 1384-85 (U.S. 2012) 

(requiring the petitioner to show that, “but for the ineffective advice of 

counsel[,] there is a reasonable probability that the plea offer would have 

been presented to the court . . ., that the court would have accepted its 
J-S38004-15

- 18 -

terms, and that the conviction or sentence, or both, under the offer’s terms 

would have been less severe than under the judgment and sentence that in 

fact were imposed”).

At the PCRA evidentiary hearing, Attorney Gross testified that he 

advised McCarty to accept the Commonwealth’s sole plea offer of five to ten 

years’ imprisonment. N.T., 5/23/2014, at 64. McCarty failed to accept that 

plea offer. Id. McCarty testified that he believed that the Commonwealth 

was willing to offer him a lesser plea of two to four years’ imprisonment. Id.

at 12. Attorney Gross acknowledged that he attempted to negotiate a lesser 

plea bargain prior to trial but testified unequivocally that he was 

unsuccessful in his negotiations and that there had never been an offer of a 

negotiated plea involving only two to four years’ imprisonment on the table. 

Id. at 64-65.

In his third issue, McCarty claims that trial counsel was ineffective for 

telling McCarty that he would keep him out of jail if McCarty paid him. Brief 

for McCarty at 17. The PCRA court maintains that issues regarding attorney 

payment are not cognizable under the PCRA. P.C.O. at 8. Although not 

thoroughly developed, McCarty appears to contend that Attorney Gross’ 

communication to him affected his decisions to reject the plea offer. See

N.P.T. at 14 (“If he would have told me, that’s the only deal, [i.e., a deal for 

a two to four-year sentence,] . . . yeah, I probably would have took it.”).

It is within counsel’s professional discretion to choose which issues to 

pursue on appeal, and we do not intend to impose upon or limit that 
J-S38004-15

- 19 -

discretion. However, we are not persuaded that McCarty’s claims so lacked 

merit as to warrant a Turner/Finley brief rather than one presenting the 

vigorous advocacy on McCarty’s behalf to which he is entitled. When this 

Court concludes that claims available to a PCRA petitioner have sufficient 

merit to warrant advocacy, we must deny counsel’s request to withdraw and 

remand to allow counsel to file an advocate’s brief. See Wrecks, 931 

A.2d 721 (Pa. Super. 2007). We do so now. 

We direct Attorney Kemling to file an advocate’s brief within thirty 

days of the date of this memorandum.6 The Commonwealth shall have 

thirty days from the date that Attorney Kemling files that brief to submit its 

own brief in rebuttal. Thereafter, Attorney Kemling will have fifteen days to 

file a reply brief, should she determine that it is appropriate to do so.

Petition to withdraw as counsel denied. Case remanded. Jurisdiction 

retained.

____________________________________________

6

In so doing, we do not intend to restrict Attorney Kemling’s discretion 

to pursue or abandon McCarty’s second and third issues on appeal. Because 

we direct Attorney Kemling to prepare an advocate’s brief, we leave it to her 

to reassess whether these claims have sufficient potential merit to warrant 

advocacy.