J-S12019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DESHAWN NEWMAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 307 EDA 2021

Appeal from the PCRA Order Entered April 11, 2019

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

No(s): CP-51-CR-0001229-2013

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED MAY 19, 2022

Deshawn Newman challenges the order dismissing his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”). We vacate the PCRA 

court’s order and remand for further proceedings.

This Court previously detailed the factual and procedural history of this 

case, wherein Appellant and his co-conspirator, Tyrek Scale, were convicted 

of first-degree murder, conspiracy, and other crimes related to the shooting 

death of Wali Patrick. See Commonwealth v. Newman, 156 A.3d 353 

(Pa.Super. 2016) (unpublished memorandum). Of relevance to the issues 

raised in this appeal, one of the witnesses at trial was John Curry, who saw 

Appellant and Scale exit a white Suzuki, walk towards the victim’s home, 

heard four gunshots, and saw Appellant and Scale return to the vehicle, which 

sped away. Mr. Curry called 911. A police chase ensued. The Suzuki crashed 
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and Appellant and Scale fled on foot, dropping what appeared to be firearms. 

Ultimately, the police apprehended Appellant and Scale. Mr. Curry was 

escorted to the crash site and identified Appellant, Scale, and the Suzuki. 

Additionally, ballistic evidence established that the discarded firearms were 

involved in the shooting. 

Appellant and Scale proceeded to a joint jury trial. The first jury 

deadlocked and the second jury convicted Appellant and Scale as indicated 

hereinabove. Appellant was sentenced to life imprisonment without the 

possibility of parole. On direct appeal, this Court affirmed his judgment of 

sentence. In 2017, Appellant filed pro se a PCRA petition raising several 

claims (“2017 PCRA petition”). The PCRA court appointed Joseph Schultz, 

Esquire (“PCRA counsel”), who sought and was granted reinstatement of 

Appellant’s right to pursue appellate review in our Supreme Court nunc pro 

tunc. Appellant filed a petition for allowance of appeal nunc pro tunc, which 

our Supreme Court denied. Id., appeal denied, 186 A.3d 369 (Pa. 2018).

Thereafter, Appellant timely filed pro se the instant PCRA petition, which 

we treat as his first (“2018 petition”). See Commonwealth v. Turner, 73 

A.3d 1283, 1286 (Pa.Super. 2013) (citation and footnote omitted) (“This Court 

has explained that when a PCRA petitioner’s direct appeal rights are reinstated 

nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be 

considered a first PCRA petition for timeliness purposes.”). The PCRA court 

re-appointed PCRA counsel. PCRA counsel reviewed the 2017 PCRA petition, 

the 2018 PCRA petition, and various letters Appellant had sent to counsel, 
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before filing a motion to withdraw as counsel and no-merit letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth 

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued 

notice of its intent to dismiss the 2018 PCRA petition pursuant to Pa.R.Crim.P. 

907. Appellant pro se filed a response to the Rule 907 notice, alleging PCRA 

counsel’s ineffectiveness.1 On April 11, 2019, the PCRA court dismissed the 

2018 PCRA petition and granted counsel’s motion to withdraw. 

Almost two years later, Appellant retained counsel and filed a PCRA 

petition seeking reinstatement of his PCRA appellate rights nunc pro tunc

(“2021 PCRA petition”). Therein, Appellant alleged that he attempted to 

timely file pro se an appeal from the order dismissing the 2018 PCRA petition. 

However, for unknown reasons, those mailings were not docketed. Upon 

inquiring about the status of his appeal, Appellant learned that the appeal had 

not been properly filed. He then retained the services of Daniel Silverman, 

Esquire, to assist with seeking reinstatement of his PCRA appeal rights nunc 

pro tunc. Recognizing that the petition was patently untimely, Appellant 

invoked the governmental interference and newly-discovered fact exceptions 

to the PCRA time-bar. See 42 Pa.C.S. § 6545(b)(1)(i-ii). After concluding that 

Appellant satisfied the newly-discovered fact exception, the PCRA court 

granted Appellant’s petition and reinstated his right to file nunc pro tunc an 

appeal from the April 11, 2019 order dismissing the 2018 PCRA petition. 

____________________________________________

1 These initial allegations of PCRA counsel’s ineffectiveness are distinct from 

those raised in Appellant’s subsequent Pa.R.A.P. 1925(b) statement. 
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This timely appeal nunc pro tunc followed. Appellant included a concise 

statement pursuant to Pa.R.A.P. 1925(b) within his notice of appeal. He 

raised, inter alia, several layered claims of ineffective assistance of PCRA 

counsel for failing to investigate and identify various ineffectiveness claims as 

to trial and/or appellate counsel. Appellant argued that his claims alleging 

PCRA counsel’s ineffectiveness were preserved because he could not raise 

them while still represented by PCRA counsel and his Rule 1925(b) statement

was therefore the first opportunity to raise these claims. See Rule 1925(b) 

Statement, 2/6/21, at 5-6. Appellant filed a supplemental Rule 1925(b) 

statement asking the PCRA court to recommend that the matter be remanded 

to the PCRA court for an evidentiary hearing on these claims.

In its Rule 1925(a) opinion, the PCRA court concluded that the claims of 

layered ineffective assistance of counsel that Appellant raised in his Rule 

1925(b) statement were waived for failing to include them in the 2018 PCRA

petition or in an amended petition therefrom. See PCRA Court Opinion, 

4/6/21, at 3. Despite this, the PCRA court conducted an alternative analysis 

and found the underlying claims of trial and/or appellate counsel’s 

ineffectiveness to be meritless. Id. at 3-10. 

Appellant raises the following issues for our consideration: 2

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2 For context, we recount briefly the relevant procedural history that

transpired between the PCRA court’s Rule 1925(a) opinion and Appellant’s 

brief. Specifically, Attorney Silverman sought to withdraw in this Court as his 

retention was limited to the 2021 PCRA petition and preserving Appellant’s 

(Footnote Continued Next Page)
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1. Should this Court defer consideration of this appeal until after 

the Pennsylvania Supreme Court issues its ruling in 

Commonwealth v. Aaron Bradley, No. 37 EAP 2020, where 

the court will decide what the proper mechanism is to enforce 

the state rule-based right of litigants to raise the effective 

assistance of initial PCRA counsel?

a. Did the lower court err in finding waived all state 

rule-based claims of initial counsel’s ineffective 

assistance because Appellant raised those claims 

for the first time in his Rule 1925(b) Statement 

when that was his first and only opportunity to do 

so?

2. Was initial PCRA counsel ineffective for failing to identify the claim 

that (a) direct appeal counsel was ineffective for failing to raise 

the claim that the trial court violated the public-trial guarantee by 

closing the courtroom during counsel’s closing arguments without 

notifying the parties and (b) trial counsel was ineffective for failing 

to object when the trial court also closed the courtroom during a 

pre-trial motion, without first considering less drastic remedies or 

adequately setting down her reasons for doing so?

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PCRA appeal rights. We granted counsel’s motion and remanded for the PCRA 

court to determine if new counsel should be appointed for purposes of this 

PCRA appeal. See Per Curiam Order, 4/13/21. On remand, the PCRA court 

appointed Earl G. Kauffmann, Esquire, to represent Appellant. Attorney 

Kauffmann subsequently sought to withdraw as counsel after Appellant once 

again retained the services of Attorney Silverman. Around this same time, 

Attorney Silverman filed an application for remand on Appellant’s behalf to 

supplement his Rule 1925(b) statement. This Court granted Attorney 

Kauffmann’s motion to withdraw, granted Appellant’s application for remand, 

and directed the PCRA court to file a supplemental opinion. See Per Curiam 

Order, 9/28/21. Appellant filed a supplemental Rule 1925(b) statement 

modifying one of the claims previously set forth. The PCRA court, in its 

supplemental opinion, contended that the modified claim was waived for 

failing to include it in the initial Rule 1925(b) statement and for failing to 

include it in the 2018 PCRA petition. See Supplemental PCRA Court Opinion, 

10/7/21, at 3. In the alternative, the PCRA court addressed the claim and 

found it meritless. Id. at 3-4. A supplemental record was submitted to this 

Court and the briefing schedule was reinstated. 
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3. Was initial PCRA counsel ineffective for failing to identify the claim 

that trial counsel was ineffective for failing to present evidence 

that Appellant enjoyed an excellent reputation for being a peaceful 

and non-violent person?

4. Was initial PCRA counsel ineffective for failing to identify the claim 

that direct appeal counsel was ineffective for failing to raise the 

claim that the trial court erred in denying the pre-trial motion to 

suppress (a) the out-of-court identification of eyewitness John 

Curry on the ground that the show-up procedure was 

unnecessarily suggestive; and (b) the derivative in-court 

identifications on the grounds that they were tainted fruits of the 

initial illegality where Curry did not have an independent basis on 

which to make those identifications adequate to purge the taint?

Appellant’s brief at 3-4.

3

 

As noted by the Commonwealth in its brief and Appellant in his reply 

brief, our Supreme Court decided Commonwealth v. Bradley, 261 A.3d 381 

(Pa. 2021), during the pendency of this appeal. By way of background, a 

petitioner has a rule-based right to the appointment and effective assistance 

of counsel for a first PCRA petition. See id. at 391 (citations omitted). Prior 

to Bradley, our courts had held that “a petitioner was required to raise PCRA 

counsel’s ineffectiveness in response to the PCRA court’s Rule 907 notice” and 

that such a claim could not be raised for the first time on appeal. Id. at 397 

(citations omitted). 

Here, Appellant was entitled to the appointment and effective assistance 

of counsel for the 2018 PCRA petition, as it was considered his first. 

Consistent with then-existing precedent, Appellant purported to raise PCRA 

____________________________________________

3 Appellant included a footnote that all claims alleged violations of both the 

United States and Pennsylvania constitutions. Appellant’s brief at 3 n.1.
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counsel’s ineffectiveness in response to the PCRA court’s Rule 907 notice. 

However, PCRA counsel had not yet been permitted to withdraw. “A petitioner 

who is already represented by PCRA counsel cannot represent himself, or seek 

concurrent representation by an additional attorney, as doing so would be 

precluded by the prohibition on hybrid representation.” Id. at 398 (citation 

omitted). Thus, Appellant’s pro se response was a legal nullity. See 

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper 

response to any pro se pleading is to refer the pleading to counsel, and to 

take no further action on the pro se pleading unless counsel forwards a 

motion.”).4

In Bradley, our Supreme Court found the then-existing approach of 

utilizing Rule 907 as the sole mechanism for challenging PCRA counsel’s 

ineffectiveness functionally unsound and abandoned it. Id. at 398, 400-01. 

In its place, the Court implemented “a modified and flexible . . . approach 

allowing a petitioner to raise claims of ineffective PCRA counsel at the first 

opportunity, even if on appeal.” Id. at 405. 

Instantly, Appellant raised the claims challenging PCRA counsel’s 

ineffectiveness in his Rule 1925(b) statement. Upon review of the certified 

record and Bradley, we agree with Appellant and the Commonwealth that the 

Rule 1925(b) statement was the earliest opportunity to do so. Thus, we reject 

____________________________________________

4 We note that, as discussed infra, in Commonwealth v. Bradley, 261 A.3d 

381 (Pa. 2021), our Supreme Court rejected the Rule 907 approach for

challenges to the effective assistance of counsel that had been extended by, 

inter alia, Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).
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the PCRA court’s assertion that the claims are waived and we turn our 

attention to their merits. 

On appeal from a PCRA court’s decision, our scope of review is “limited 

to examining whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal error. We view 

the findings of the PCRA court and the evidence of record in a light most 

favorable to the prevailing party.” Commonwealth v. Johnson, 236 A.3d 

63, 68 (Pa.Super. 2020) (en banc) (cleaned up). The PCRA court’s credibility 

determinations are binding on this Court when supported by the certified 

record, but we review its legal conclusions de novo. Id. (citation omitted). 

Appellant challenges the effective assistance of trial, appellate, and 

PCRA counsel. Preliminarily, we observe that counsel is presumed to be 

effective and the petitioner bears the burden of proving otherwise. Id. 

(citation omitted). To do so, he must establish the following three elements: 

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s action or failure to act; and (3) the 

petitioner suffered prejudice as a result of counsel’s error, with 

prejudice measured by whether there is a reasonable probability 

that the result of the proceeding would have been different.

Id. (citations omitted). Failure to prove any of the three elements will result 

in dismissal of the ineffectiveness claim. Id. (citation omitted). 

Specifically, Appellant’s claims focus on PCRA counsel’s ineffectiveness 

for failing to raise claims as to the ineffectiveness of appellate and/or trial 

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

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

For Appellant’s claims, the first attorney that purportedly rendered 

ineffective assistance is, respectively, as follows: (1) trial counsel for failing 

to object to the closing of the courtroom during the pre-trial motion; (2) 

appellate counsel for failing to raise a challenge on appeal to the trial court’s 

surreptitious closing of the courtroom during closing arguments; (3) trial 

counsel for not presenting character evidence that Appellant enjoyed a 

reputation for being peaceful and non-violent; and (4) appellate counsel for 

failing to challenge the pre-trial suppression ruling on the grounds that the 

show-up was unnecessarily suggestive and the subsequent in-court 

identification was tainted. In its Rule 1925(a) opinion, the PCRA court found 

these claims waived but considered, in the alternative, the merits of 

Appellant’s underlying claims of ineffective assistance of appellate and/or trial 

counsel. 

In permitting petitioners to raise claims of PCRA counsel’s 

ineffectiveness for the first time on appeal, the Bradley Court recognized 

remand may sometimes be necessary:

In some instances, the record before the appellate court will be 

sufficient to allow for disposition of any newly-raised 

ineffectiveness claims. However, in other cases, the appellate 

court may need to remand to the PCRA court for further 

development of the record and for the PCRA court to consider such 
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claims as an initial matter. Consistent with our prior case law, to 

advance a request for remand, a petition would be required to 

provide more than mere boilerplate assertions of PCRA counsel’s 

ineffectiveness; however, where there are material facts at issue 

concerning claims challenging counsel’s stewardship and relief is 

not plainly unavailable as a matter of law, the remand should be 

afforded.

Bradley, supra at 402 (cleaned up). In other words, “appellate courts will 

have 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.” 

Id. at 403. Thus, our Supreme Court reaffirmed the preference for evidentiary 

hearings and 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 by Bradley, supra. Moreover, the appropriate forum for the 

development of an evidentiary record on PCRA claims is the PCRA court as the 

appellate courts do not serve as fact-finding courts. See Commonwealth v. 

Shaw, 247 A.3d 1008, 1017 (Pa. 2021) (citations omitted). 

As discussed supra, Appellant raised PCRA counsel’s ineffectiveness at 

the earliest opportunity. Additionally, his claims are not mere boilerplate 

assertions. See Bradley, supra, at 402. The PCRA court considered the 

merits of the ineffectiveness claims in the alternative, finding that Appellant 

had failed to establish either the arguable merit of the underlying claim or 

prejudice. Since the court found trial counsel and appellate counsel effective, 

PCRA counsel could not be ineffective for failing to challenge their

effectiveness. However, because the claims were raised for the first time on 
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appeal, no evidentiary hearing was held. Thus, Appellant has not had the 

opportunity to develop these claims outside the argument in his brief, which 

occurred after the PCRA court found the claims to be meritless. With this 

backdrop, we consider each claim in turn to determine whether remand is 

necessary.

We begin with Appellant’s first two claims regarding closure of the 

courtroom during the pre-trial motion and Appellant’s closing argument. “A 

defendant has a Sixth Amendment right to a trial that is open to members of 

the public.” Commonwealth v. Jordan, 212 A.3d 91, 101 (Pa.Super. 2019)

(citation omitted). The United States Supreme Court has set forth that while 

a defendant has the right to a public trial, a court may close the courtroom if 

the following factors (“Waller factors”) are met: “(1) there is ‘an overriding 

interest that is likely to be prejudiced,’ (2) the closure is ‘no broader than 

necessary to protect that interest,’ (3) the trial court considers ‘reasonable 

alternatives’ to closure, and (4) the trial court makes ‘findings adequate to 

support the closure.’” Id. (quoting Waller v. Georgia, 467 U.S. 39, 48 

(1984)). “The violation of the right to a public trial constitutes a structural 

defect, a specific type of constitutional error warranting a new trial without 

any showing of prejudice.” Id. at 103 (citation omitted). However, in 

Pennsylvania, when the violation is raised in connection with an ineffective 

assistance of counsel claim, the petitioner must establish prejudice. See 

Commonwealth v. Rega, 70 A.3d 777, 787 (Pa. 2013) (citation omitted). 
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Appellant’s first layered claim begins with trial counsel’s ineffectiveness 

for failing to object to the closing of the courtroom during the pre-trial motion 

hearing. Critically, in his brief, Appellant asks this Court to ignore our case 

law requiring proof of prejudice in connection with an ineffective assistance of 

counsel claim for failing to object to a courtroom closure. See Appellant’s 

brief at 36. This we cannot do. As Appellant failed to present any argument 

that he was prejudiced by trial counsel’s inaction, relief is “plainly unavailable 

as a matter of law” and we need not remand to the PCRA court for further 

consideration of this claim. See Bradley, supra at 402.

We next turn to Appellant’s layered claim that begins with appellate 

counsel’s ineffectiveness for failing to argue on direct appeal that the trial 

court erred in closing the courtroom during closing arguments. By way of 

background, unbeknownst to trial counsel, the trial court apparently directed 

court staff to stop allowing individuals into the courtroom during the defense 

closing arguments. The only evidence of this is that the trial court thereafter 

advised counsel of what it had done. See N.T., 4/17/15, at 97-98. 

In concluding Appellant’s layered ineffectiveness claim was meritless, 

the PCRA court found the underlying claim to be without merit. Specifically, 

the court determined that the courtroom was never closed because the court 

merely barred re-entry or, in the alternative, the closure was justified. See 

PCRA Court Opinion, 4/6/21, at 8-9. Additionally, the PCRA court concluded 

that Appellant failed to prove prejudice. Id. at 9. Finally, according to the 

PCRA court, trial counsel failed to object to the closure and therefore appellate 
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counsel could not be deemed ineffective for failing to raise a waived claim. 

PCRA Court Opinion, 10/7/21, at 4. 

Contrarily, Appellant argues that because trial counsel was unaware the 

closure had happened, he was unable to object and therefore it was appellate 

counsel who was first ineffective for failing to raise the substantive claim as 

to this closure on direct appeal. See Appellant’s brief at 20, 30. Moreover, 

and unlike the prior claim, Appellant argues that he was prejudiced by

appellate counsel’s failure to raise this claim on appeal because, if successful, 

his conviction would have been vacated. See Appellant’s brief at 33. 

Based on the certified record, it is unclear whether the courtroom was 

in fact closed, whether trial counsel was aware of the closure before it 

happened, and whether counsel had an opportunity to preserve the issue at 

trial or if it could only be raised for the first time on appeal. Given these

ambiguities, the fact that Appellant raised more than a boilerplate assertion 

of layered ineffectiveness, and relief is not plainly unavailable as a matter of 

law, we conclude that the most prudent course of action is to remand this 

claim to the PCRA court. Upon remand, the PCRA court will be best equipped 

to consider this issue in the first instance with the benefit of an amended PCRA 

petition and, if warranted, an evidentiary hearing.

We next turn to Appellant’s third claim regarding trial counsel’s failure 

to present character evidence. A criminal defendant may offer evidence of a

pertinent character trait as substantive evidence that he did not commit a 

charged crime. See Pa.R.E. 404(a)(2)(A). “Evidence of good character is 
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substantive and positive evidence, not a mere make weight to be considered 

in a doubtful case, and is an independent factor which may of itself engender 

reasonable doubt or produce a conclusion of innocence.” Commonwealth v. 

Goodmond, 190 A.3d 1197, 1201 (Pa.Super. 2018) (cleaned up). However, 

“[t]he failure to call character witnesses does not constitute per se 

ineffectiveness.” Commonwealth v. Treiber, 121 A.3d 435, 463 (Pa. 2015). 

Rather, to succeed on such a claim, a petitioner must establish the following: 

(1) the 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 the defendant a fair 

trial.

Goodmond, supra at 1202 (cleaned up).

Critically, the primary reason the PCRA court concluded that Appellant’s 

claim failed was because Appellant did not establish that any witness was 

willing and able to testify that he had a reputation for peacefulness and nonviolence. PCRA Court Opinion, 4/6/21, at 6. In his brief, however, Appellant 

included declarations from three witnesses that claimed to be willing and able 

to provide such testimony. See Appellant’s brief at Exhibits A-C. 

Assuming such a witness existed, the PCRA court concluded that 

Appellant’s claim would still fail because he could not establish prejudice given

the strength of the physical and eyewitness evidence against him. See PCRA 

Court Opinion, 4/6/21, at 6. Appellant disagrees with the purported strength 

of this evidence as the initial jury, on the same evidence, was unable to reach 
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a verdict. See Appellant’s brief at 42. Since character evidence itself can 

create reasonable doubt, Appellant avers that he was prejudiced by counsel’s 

inaction. Id. 

Given the potential prejudice, Appellant’s presentation of witness 

declarations, the uncertainty as to whether counsel knew about these 

witnesses and their willingness to testify,5 and the PCRA court’s silence as to 

the reasonableness of counsel’s inaction, we conclude that relief is not plainly 

unavailable as a matter of law. See Colavita, supra; Shaw, supra. 

Accordingly, remand is also necessary for this claim.

Finally, we address Appellant’s claims regarding appellate counsel’s 

failure to challenge the pre-trial suppression ruling on appeal, mindful of the 

following principles:

In reviewing the propriety of identification evidence, the central 

inquiry is whether, under the totality of the circumstances, 

the identification was reliable. Our Supreme Court has held that 

on-scene identifications are not only consistent with due process 

but also enhance the reliability of identifications as they occur 

when events are fresh in a witness’s mind.

____________________________________________

5

It is also unclear from the certified record if counsel spoke to Appellant about 

whether he had any character witnesses to present. Instead of a detailed 

colloquy regarding the importance of character witnesses, the following brief 

exchange occurred: 

THE COURT: [Appellant], any other witnesses other than the 

one that Mr. Patrizio is calling [regarding your 

limp]?

[APPELLANT]: No. 

N.T., 4/17/15, at 17. 
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In deciding whether to admit contested identification evidence, 

the trial court must consider: (1) the opportunity of the witness 

to view the perpetrator at the time of the crime; (2) the witness’

degree of attention; (3) the accuracy of his prior description of the 

perpetrator at the confrontation; (4) the level of certainty 

demonstrated at the confrontation; and (5) the time between the 

crime and confrontation. Suggestiveness in the identification 

process is but one factor to be considered in determining the 

admissibility of such evidence and will not warrant exclusion 

absent other factors.

The suppression court may suppress an out-of-court identification 

only where, after considering all the relevant circumstances, the 

facts demonstrate that the identification procedure was so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification. The most important 

factor in addressing the reliability of an identification is the 

witness’s opportunity to observe the perpetrator at the time of the 

crime.

Commonwealth v. Milburn, 191 A.3d 891, 899–900 (Pa.Super. 2018)

(cleaned up). 

Briefly, this issue concerns the identification of Appellant by Mr. Curry 

after Appellant was apprehended by police. In concluding that the underlying 

claim lacked arguable merit, the PCRA court found that the show-up procedure

was not unduly suggestive and that Mr. Curry had a strong basis for his 

identification: 

Curry first saw the [two men] in a well-lit area, only fifteen feet 

from where he was standing in his home. Curry closely observed 

them before and after they went to Kinsey Street, and after they 

drove past his home in their attempt to flee. Curry told officers 

that he would be able to identify them if given the opportunity. 

Curry’s identification occurred only a half hour after first seeing 

[Appellant] and his co-defendant, and in making the identification, 

Curry displayed a high degree of certainty.
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PCRA Court Opinion, 4/6/21, at 5 (record citations omitted). As the PCRA 

court found the initial identification to be sound, it unsurprisingly did not 

address the merits of Appellant’s derivative claim that the subsequent in-court 

identification was tainted.

The evidentiary record before us is incomplete. While it includes 

Appellant’s motion to suppress, where he preserved both claims, the certified 

record does not contain the transcript of Appellant’s suppression hearing. 

Therefore, we are unable to evaluate whether the PCRA court’s conclusion that 

the underlying claim lacked merit is supported by the record, and therefore 

also cannot evaluate Appellant’s derivative claim as to the in-court 

identification being tainted by the initial show-up procedure. Due to the 

insufficient record for these claims, we deem remand necessary here as well.

Based on the foregoing, we vacate the order denying the 2018 PCRA 

petition and remand this case to the PCRA court for Appellant to create an 

evidentiary record in conjunction with his claims that PCRA counsel was 

ineffective for not ascertaining or raising (1) appellate counsel’s 

ineffectiveness for failing to argue that the trial court erred in closing the 

courtroom during closing arguments, (2) trial counsel’s ineffectiveness for 

failing to present character witnesses, and (3) appellate counsel’s 

ineffectiveness for failing to challenge the pre-trial suppression ruling. Upon 

remand, counsel should file an amended petition on Appellant’s behalf, 

wherein he can fully develop these claims. Thereafter, the PCRA court must 

decide whether to conduct an evidentiary hearing on the new claims. 
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Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/19/2022