J-S60039-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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STEVEN ESTREMERA,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 3040 EDA 2015

Appeal from the PCRA Order August 26, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0012681-2010

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 20, 2016

Steven Estremera (Appellant) appeals from the August 26, 2015 order 

that dismissed without a hearing his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the 

order and remand for further proceedings consistent with this memorandum.

Appellant entered negotiated guilty pleas to third-degree murder and 

other crimes related to the stabbing death of his mother-in-law. Appellant 

was sentenced, in accordance with the terms of the plea agreement, to an 

aggregate term of 25 to 50 years of imprisonment. He filed no postsentence motion or direct appeal. 

Appellant timely filed a PCRA petition on May 30, 2012. On December 

16, 2013, appointed counsel filed a motion to withdraw and a no-merit letter 

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 
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banc). The PCRA court issued a notice of intent to dismiss Appellant’s 

petition without a hearing pursuant to Pa.R.Crim.P. 907, then dismissed 

Appellant’s petition by order of March 28, 2014. Appellant appealed, raising 

claims of ineffective assistance of counsel. This Court determined that most 

of his claims lacked merit; however, we remanded for the appointment of 

new PCRA counsel to consider the claim that Appellant’s plea counsel was 

ineffective in failing to move to suppress his confession, rendering his guilty 

plea involuntary.

The PCRA court appointed new counsel who ultimately filed a no-merit 

brief pursuant to Finley. The PCRA court again issued notice of intent to 

dismiss the PCRA petition without a hearing. On August 26, 2015, the PCRA 

court filed orders allowing counsel to withdraw and dismissing Appellant’s 

petition. Appellant timely filed a notice of appeal. The PCRA court did not 

order Appellant to file a concise statement of errors complained of on 

appeal, and none was filed. The PCRA court did file an opinion pursuant to 

Pa.R.A.P. 1925(a).

Appellant contends that the PCRA court erred in allowing counsel to 

withdraw and dismissing his petition without a hearing. Appellant’s Brief at 

4. The PCRA court agrees with Appellant and asks this Court to remand the 

case “for evidentiary proceedings to determine the legality of [Appellant’s] 

detention and confession as well as trial counsel’s alleged [in]effectiveness.” 
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PCRA Court Opinion, 11/16/2015, at 4-5. The Commonwealth, however, 

argues that the PCRA court’s initial determination that the claim lacked merit 

was correct and asks this Court to affirm the order dismissing Appellant’s 

petition. Commonwealth’s Brief at 10-11.

“The standard of review for an order denying post-conviction relief is 

limited to whether the record supports the PCRA court’s determination, and 

whether that decision is free of legal error.” Commonwealth v. Walters, 

135 A.3d 589, 591 (Pa. Super. 2016) (quoting Commonwealth v. Allen, 

48 A.3d 1283, 1285 (Pa. Super. 2012)). 

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

petitioner must plead and prove: “(1) that the underlying claim has arguable 

merit; (2) that no reasonable basis existed for counsel’s actions or failure to 

act; and (3) that the petitioner suffered prejudice as a result of counsel’s 

error.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) 

(citation omitted). “Counsel is presumed to be effective; accordingly, to 

succeed on a claim of ineffectiveness the petitioner must advance sufficient 

evidence to overcome this presumption.” Id. (citation omitted). 

Allegations 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. 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.
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Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting 

Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012)). 

Here, Appellant claims that 

both prior to his October 12, 2010 preliminary hearing and May 

26, 2011 guilty plea, Appellant informed his trial counsel that at 

the time it was alleged he provided a ‘confession’ to police, he 

had been held in custody for a period of roughly 29 hours, was 

not advised of his rights as required by Miranda v. Arizona, 

384 U.S. 436 (1966), and was under the influence of drugs.

Despite having been made aware of these facts, trial 

counsel never advised Appellant of the option of filing and/or 

otherwise litigating a motion to suppress. Instead, trial counsel 

advised Appellant to plead guilty. For purpose of clarity, 

Appellant’s basic contention ... is that his guilty plea should be 

invalidated because it was primarily induced or motivated by the 

existence of incriminating evidence obtained by police through 

means which violated Appellant’s constitution[al] rights.

Appellant’s Brief at 16. 

Although the PCRA court initially held that Appellant’s claim lacked 

merit, and thus allowed his counsel to withdraw and dismissed the PCRA 

petition without a hearing, it now opines that a hearing is warranted:

In the instant case, [Appellant] was taken to police 

headquarters and questioned. Initially, he was not under arrest. 

He was considered a witness to events that led up to his motherin-law’s murder. [Appellant] told the police that someone 

named Macho had killed the victim. Over the course of the next 

twenty-nine (29) hours, police attempted to verify [Appellant’s] 

version of events. They located and spoke with Macho as well 

as Macho’s wife and mother. All the while, [Appellant] remained 

at police headquarters.

Notwithstanding Detective Scally’s claim that [Appellant] 

was not under arrest because he hadn’t been handcuffed or 
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confined to an interview room, it is apparent that [Appellant’s] 

“visit” to police headquarters ultimately ripened into a custodial 

detention during this time. It is equally clear that [Appellant] 

was initially interviewed as a material witness to a crime. Only 

after the police were able to disprove [Appellant’s] initial version 

of events did he become a prime suspect. At that point, the 

police gave petitioner his Miranda warnings, and petitioner gave 

a full confession. Although the Commonwealth asserts that 

[Appellant] “voluntarily” confessed, the fact remains that he was 

detained for a significant period of time absent probable cause 

prior to confessing.

* * *

Although Detective Scally briefly testified at [Appellant’s] 

preliminary hearing that [Appellant] was not handcuffed during 

his detention and that [Appellant] was Mirandized before giving 

his statement, there is scant information regarding intervening 

circumstances, the conditions of [Appellant’s] detention and 

whether the police engaged in misconduct or coercive tactics to 

secure a confession. Based upon the record before it, this court 

simply cannot determine whether a suppression motion would 

have been meritorious had [Appellant] or trial counsel raised it. 

Moreover, this court does not know whether trial counsel 

discussed the suppression issue with [Appellant]. Nor can it 

determine whether the waiver of this issue played a role in the 

Commonwealth’s decision to nolle prosse the first degree murder 

bill and, instead, offer [Appellant] a plea to third degree murder.

Ultimately, therefore, the state of the existing record does 

not enable this court to determine whether [Appellant’s] decision 

to forego a suppression hearing and a trial was knowingly made.

PCRA Court Opinion, 11/16/2015, at 7-9 (citations omitted).

The Commonwealth disagrees with Appellant and the PCRA court, 

maintaining that Appellant’s petition properly was dismissed without a 

hearing. It contends that Appellant’s claim must fail because (1) Appellant 

indicated in his written plea colloquy that he understood that, by pleading 
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guilty, he was giving up the right to file pre-trial motions, Commonwealth’s 

Brief at 16; and (2) that there is no merit to the underlying suppression 

claim because, inter alia, Appellant’s signed statement indicates that he was 

not under the influence of drugs and the length of his detention “was a direct 

result of his untruthfulness and so is not a ground for suppression.” Id. at 

19. 

We are not persuaded that the Commonwealth’s arguments 

necessarily prevail at this juncture. The fact that Appellant acknowledged 

that he was waiving his right to file a suppression motion by pleading guilty 

does not imply that trial counsel discussed with Appellant the merits of a 

motion to suppress his statements under the circumstances of Appellant’s 

detention. The issue cannot be resolved until the PCRA court makes factual 

findings, following an evidentiary hearing, about what advice counsel did or 

did not give to Appellant. Similarly, whether the underlying suppression 

issue has merit depends on the PCRA factual determinations about the 

circumstances of Appellant’s detention. 

Accordingly, we agree with the PCRA court’s conclusion that there are 

unresolved issues of material fact requiring an evidentiary hearing. See

Pa.R.Crim.P. 908 (providing that the judge shall order a hearing when 

material issues of fact are raised). Further, Appellant is entitled to be 

represented by counsel at the hearing. See Pa.R.Crim.P. 904(C) (requiring 
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the appointment of counsel for an indigent petitioner on his or her first PCRA 

petition); Commonwealth v. Brown, 836 A.2d 997, 998 (Pa. Super. 2003) 

(noting that the right to representation “exists throughout the postconviction proceedings”); Pa.R.Crim.P. 904(D) (mandating appointment of 

counsel to represent a criminal defendant when an evidentiary hearing is 

required). 

Order vacated. Case remanded for further proceedings consistent with 

this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2016