J-S32029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

BRIAN WATKINS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2486 EDA 2019

Appeal from the Order Entered August 1, 2019

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003589-2014

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED SEPTEMBER 09, 2020

Appellant, Brian Watkins, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which denied his first petition 

filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546. For the following reasons, we vacate and remand for further 

proceedings.

In its opinion, the PCRA court sets forth the relevant facts and 

procedural history of this case as follows:

On February 14, 2014, Officers Ladarza and Tritz...were on 

patrol in the area of 6200 Vine Street, located in the City 

and County of Philadelphia, Pennsylvania. The officers 

observed a blue Chevrolet Malibu traveling from 300 Horton 

Street and turn westbound onto Vine Street without using 

its turn signal, in violation of 75 Pa.C.S.A. § 3334(b). Officer 

Tritz, while operating a full-marked police vehicle, 

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* Retired Senior Judge assigned to the Superior Court.
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conducted a U-turn with the purpose of conducting a traffic 

stop on the Chevrolet Malibu. After activating the patrol 

vehicle’s overhead emergency lights, the Chevrolet Malibu 

pulled over without incident in [the] 5700 block of West 

Girard Avenue.

Upon stopping the Malibu, the officers exited their 

vehicle...to make contact with the Malibu’s driver. Appellant 

was identified as the Malibu’s driver and had two children in 

the rear seats. As Officer Ladarza reached the Malibu’s 

passenger window, he observed the rear sight and bottom 

handle of a firearm in plain view under the passenger seat’s 

floor mat. Officer Ladarza signaled to his partner there was 

a firearm and Officer Tritz removed the driver. Appellant 

was detained and, in a search incident to arrest, officers 

located one bag of heroin. The officers recovered a black 9-

millimeter Stallared Arms firearm from under the 

passenger’s side floor mat. Appellant was placed under 

arrest and charged with VUFA violations and possession of 

a controlled substance. 

After a preliminary hearing, Appellant appeared before the 

Honorable Rayford Means on July 29, 2014, at which the 

Commonwealth offered a guilty plea of 4-8 years’ 

confinement. Appellant rejected the offer and instead 

elected to proceed to trial. Appellant filed a counseled 

Motion to Suppress, which was denied by the court on 

February 23, 2015. After the Motion to Suppress was 

denied, Appellant entered an open guilty plea [to possession 

of a firearm prohibited, firearms not to be carried without a 

license, carrying a firearm in public in Philadelphia, and 

possession of a controlled substance] on that same date. 

On May 29, 2015, Appellant was sentenced by this court to 

an aggregate prison term of six to twelve years’ 

confinement. A timely post-sentence Motion for 

Reconsideration of Sentence was filed that [was] ultimately 

denied by operation of law on October 7, 2015. Appellant 

did not file a direct appeal to the Superior Court.

(PCRA Court Opinion, filed November 6, 2019, at 1-2) (internal citations 

omitted). 

On March 21, 2016, Appellant timely filed pro se his first PCRA petition. 
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The court subsequently appointed counsel, who filed an amended petition on 

May 14, 2018. In the petitions, Appellant argued plea counsel was ineffective 

for advising him to reject the Commonwealth’s initial plea offer of 4 to 8 years’ 

imprisonment and to file a suppression motion instead, the denial of which 

ultimately resulted in a lengthier sentence for Appellant. Appellant attached

a letter from plea counsel, dated May 20, 2014, in support of his argument. 

The letter reads as follows:

Dear Bree,

Please find enclosed a copy of your discovery. As you will 

see, the pictures from your Instagram account are not 

helpful at all. This essentially precludes us from taking the 

case to trial under the theory that the gun isn’t yours and 

that you had no knowledge of it previous to the stop by 

police. 

Obviously, going forward you need to be careful what you 

post on social media. At this point I think it is best to 

proceed with a suppression motion requiring [your

daughter,] Breeanna[,] to testify, as she will be the most 

compelling witness. That is your best bet at this point. Your 

next court date is June 12th, 2014. I will file the motion prior 

to that date and ask that the motion be listed for a court 

date. 

The offer they have made on the new case is 4-8 years plus 

a tail. Even if the suppression isn’t successful, I think you 

would get a better sentence than that in front of Judge 

Means after the motion is litigated. Alternatively, we could 

combine everything in front of Judge Brinkley for your 

violation and the new case and put on the mitigation 

regarding the robbery, etc. Judge Brinkley has you listed 

for a violation on the 12th as well. I am not sure how much 

time she has to work with because I am pretty sure you are 

close to maxing out. The Public Defender represents you on 

that matter. I spoke with her in depth about a 

comprehensive game plan so that we can get you home as 
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soon as possible. If you have any information you would 

like to share with me, please write me. I will discuss 

everything more in depth with you when I see you at court.

Best,

[Plea Counsel]

(See PCRA Petition, 3/21/16, attachment 1; Amended PCRA Petition, 5/14/18, 

Exhibit A). Appellant also attached a copy of the Commonwealth’s “SMART 

room offer sheet” dated April 16, 2014, of 4 to 8 years’ imprisonment, plus 3

years’ probation, in exchange for Appellant’s guilty plea to possession of a 

firearm prohibited and firearms not to be carried without a license. (See PCRA 

Petition, 3/21/16, attachment 2; Amended PCRA Petition, 5/14/18, Exhibit B). 

On May 2, 2019, the PCRA court issued notice of its intention to dismiss 

Appellant’s petition without an evidentiary hearing, pursuant to Pa.R.Crim.P. 

907. Appellant did not file a response, and the court dismissed the petition 

on August 1, 2019. On August 22, 2019, Appellant timely filed a notice of 

appeal. On September 5, 2019, the court ordered Appellant to file a concise 

statement of errors complained of on appeal, per Pa.R.A.P. 1925(b); Appellant 

timely complied on September 26, 2019. 

Appellant raises one issue on appeal:

Did the PCRA court incorrectly dismiss [A]ppellant’s PCRA 

petition without conducting an evidentiary hearing into 

[plea] counsel’s ineffective advice in rejecting an offer from 

the Commonwealth to plead guilty for an offer of 4-8 years 

of incarceration[?]

(Appellant’s Brief at 6). 
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On appeal, Appellant argues plea counsel was ineffective for advising 

Appellant to reject the Commonwealth’s initial plea offer of 4 to 8 years’ 

incarceration and to pursue a motion to suppress instead. Appellant contends 

this advice caused Appellant to later plead guilty and receive a greater 

sentence of 6 to 12 years’ imprisonment. Appellant maintains that, even if 

the court believed counsel had a valid reason for giving Appellant that advice, 

the proper approach should have been to conduct an evidentiary hearing to 

determine whether counsel’s advice was reasonable prior to dismissing 

Appellant’s petition. Appellant concludes this Court should vacate the PCRA 

court’s dismissal of Appellant’s petition and remand for an evidentiary hearing. 

We are inclined to agree. 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error. Commonwealth v. Conway, 

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 

(2011). This Court grants great deference to the findings of the PCRA court if 

the record contains any support for those findings. Commonwealth v. Boyd, 

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 

(2007). We give no such deference, however, to the court’s legal conclusions. 

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). 

Further, a petitioner is not entitled to a PCRA hearing as a matter of 

right; the PCRA court can decline to hold a hearing if there is no genuine issue 
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concerning any material fact, the petitioner is not entitled to relief, and no 

purpose would be served by any further proceedings. Commonwealth v. 

Wah, 42 A.3d 335 (Pa.Super. 2012). “A reviewing court on appeal must 

examine each of the issues raised in the PCRA petition in light of the record in 

order to determine whether the PCRA court erred in concluding that there 

were no genuine issues of material fact and in denying relief without an 

evidentiary hearing.” Commonwealth v. Smith, 121 A.3d 1049, 1052 

(Pa.Super. 2015), appeal denied, 635 Pa. 763, 136 A.3d 981 (2016) (quoting 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007), appeal 

denied, 594 Pa. 685, 934 A.2d 72 (2007)). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, a petitioner is required 

to make the following showing: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable strategic basis for his action or inaction; and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 

The failure to satisfy any prong of the test for ineffectiveness of counsel will 

cause the claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 
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for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal 

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v. 

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

Once this threshold is met we apply the “reasonable basis” 

test to determine whether counsel’s chosen course was

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates

that counsel’s chosen course of action had an adverse effect

on the outcome of the proceedings. The defendant must 

show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome. In [Kimball, supra], we held that a “criminal 

defendant alleging prejudice must show that counsel’s

errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) 

(some internal citations and quotation marks omitted). 

“Generally, counsel has a duty to communicate plea bargains to his 

client, as well as to explain the advantages and disadvantages of the offer.” 

Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa.Super. 2001), appeal 

denied, 567 Pa. 739, 788 A.2d 374 (2001). “Failure to do so may be 
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considered ineffectiveness...if the defendant is sentenced to a longer prison 

term than the term he would have accepted under the plea bargain.” Id.

Furthermore, our United States Supreme Court has explained:

To show prejudice from ineffective assistance of counsel 

where a plea offer has lapsed or been rejected because of 

counsel’s deficient performance, defendants must 

demonstrate a reasonable probability they would have 

accepted the earlier plea offer had they been afforded 

effective assistance of counsel. Defendants must also 

demonstrate a reasonable probability the plea would have 

been entered without the prosecution canceling it or the trial 

court refusing to accept it, if they had the authority to 

exercise that discretion under state law. To establish 

prejudice in this instance, it is necessary to show a 

reasonable probability that the end result of the criminal 

process would have been more favorable by reason of a plea 

to a lesser charge or a sentence of less prison time. 

...In a case...where a defendant pleads guilty to less 

favorable terms and claims that ineffective assistance of 

counsel caused him to miss out on a more favorable earlier 

plea offer, Strickland’s

[1]

inquiry into whether “the result of 

the proceeding would have been different,” requires looking 

not at whether the defendant would have proceeded to trial 

absent ineffective assistance but whether he would have 

accepted the offer to plead pursuant to the terms earlier 

proposed. 

Missouri v. Frye, 566 U.S. 134, 147-48, 132 S.Ct. 1399, 1409-10, 182 

L.Ed.2d 379, ___ (2012) (internal citations omitted). 

Instantly, we must initially address the PCRA court’s contention that 

Appellant’s PCRA petition is deficient where Appellant failed to procure a 

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1 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984).
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witness certification from plea counsel. (See PCRA Court Opinion at 5-6). In 

support of its assertion, the PCRA court cites Section 9545(d)(1) of the PCRA, 

which provides, in pertinent part:

§ 9545. Jurisdiction and proceedings

* * *

(d) Evidentiary hearing.—

(1) The following apply:

(i) Where a petitioner requests an evidentiary 

hearing, the petition shall include a signed certification 

signed by each intended witness stating the witness’s name, 

address, date of birth and substance of testimony and shall 

include any documents material to that witness’s testimony. 

(ii) If a petitioner is unable to obtain the signature of 

a witness under subparagraph (i), the petitioner shall 

include a certification, signed by the petitioner or counsel, 

stating the witness’s name, address, date of birth and 

substance of testimony. ... 

(iii) Failure to substantially comply with the 

requirements of this paragraph shall render the proposed 

witness’s testimony inadmissible.

42 Pa.C.S.A. § 9545(d)(1). See also Pa.R.Crim.P. 902(A)(15) (discussing 

content of PCRA petition and request for evidentiary hearing). 

It is within a PCRA court’s discretion to decline to hold an evidentiary 

hearing where a petitioner fails to provide any certification regarding potential 

witnesses. Commonwealth v. Brown, 767 A.2d 576, 583 (Pa.Super. 2001). 

Significantly, however, “it is improper to affirm a PCRA court’s decision on the 

sole basis of inadequate witness certifications where the PCRA court did not 
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provide notice of the alleged defect.” Commonwealth v. Pander, 100 A.3d 

626, 642 (Pa.Super. 2014) (en banc), appeal denied, 631 Pa. 712, 109 A.3d 

679 (2015) (citing Pa.R.Crim.P. 905(B);2 Commonwealth v. Robinson, 596 

Pa. 580, 947 A.2d 710 (2008) (per curiam order)). 

Here, Appellant attached a “Certification of Intended Witnesses” to his 

amended PCRA petition. This certification lists the names and addresses of 

two potential witnesses: Appellant and plea counsel. Absent from the 

certification, however, is any discussion of plea counsel’s proposed testimony. 

Nevertheless, the record confirms the PCRA court failed to provide Appellant 

with notice of any defect in his witness certification prior to the court’s entry 

of Rule 907 notice and ultimate dismissal of the petition. Therefore, we decline

to deny PCRA relief on this basis. See Pa.R.Crim.P. 905 (B); Robinson, 

supra; Pander, supra. 

Turning to the merits of Appellant’s claim, the record demonstrates that 

the Commonwealth offered Appellant a plea bargain on April 16, 2014, of 4 to 

8 years’ incarceration, plus 3 years’ probation, in exchange for a plea to one 

count each of possession of a firearm prohibited and firearms not to be carried 

without a license. On May 20, 2014, plea counsel wrote Appellant the letter 

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2 Rule 905(B) states: “When a petition for post-conviction collateral relief is 

defective as originally filed, the judge shall order amendment of the petition, 

indicate the nature of the defects, and specify the time within which an 

amended petition shall be filed. If the order directing amendment is not 

complied with, the petition may be dismissed without a hearing.” Pa.R.Crim.P. 

905(B).
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advising him to reject the plea offer. Appellant rejected the Commonwealth’s 

offer on July 29, 2014. In 2015, Appellant filed a suppression motion, which 

the court denied. Appellant then pled guilty on February 23, 2015, to 

possession of a firearm prohibited, firearms not to be carried without a license, 

carrying a firearm in public in Philadelphia, and possession of a controlled 

substance, and the court sentenced Appellant to 6 to 12 years’ incarceration. 

In his timely PCRA petitions, Appellant submitted the letter from plea

counsel to show he pled guilty to greater charges and received a longer 

sentence due to plea counsel’s advice to reject the initial plea offer and to 

pursue an ultimately unsuccessful suppression motion. In its opinion denying 

relief, the PCRA court explained that plea counsel’s letter to Appellant offered 

reasonable advice and defense strategies. (See PCRA Court Opinion at 6-7). 

Nevertheless, plea counsel’s letter does not articulate the legal basis for 

why counsel believed the suppression motion would be successful, or explain 

counsel’s reasons for believing Appellant would face a shorter sentence before 

Judge Means, even if the suppression motion proved unsuccessful. 

Additionally, although plea counsel communicated the advantages of rejecting 

the plea offer (i.e., winning the suppression motion or being sentenced to a 

lower sentence by Judge Means even if the suppression motion was denied), 

counsel did not explain in the letter the possible disadvantages of rejecting 

the offer (i.e., facing greater charges than the Commonwealth agreed to in 

the initial plea offer and facing a potentially longer sentence). See Marinez, 
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supra. Consequently, the court should have conducted an evidentiary 

hearing on the reasonableness of counsel’s strategy. See Commonwealth 

v. Cousar, 638 Pa. 171, 191-92, 154 A.3d 287, 299 (2017) (expressing 

preference for evidentiary hearing on reasonableness of counsel’s actions or 

inactions before deciding that counsel’s strategy was, in fact, reasonable). 

The PCRA court also decided Appellant failed to satisfy the prejudice 

prong of the ineffectiveness test, stating: “Appellant’s bald assertions alone 

that plea counsel’s allegedly deficient performance through her instructions 

cannot stand as proof that, but for counsel’s performance, the result of the 

proceeding would have been different.” (PCRA Court Opinion at 6). We 

disagree. Consistent with our Supreme Court’s dictates, the analysis of the 

prejudice prong in this case “requires looking not at whether the defendant 

would have proceeded to trial absent ineffective assistance but whether he 

would have accepted the offer to plead pursuant to the terms earlier 

proposed.” See Frye, supra. See also Marinez, supra. Here, Appellant 

properly pled that had counsel advised him not to reject the initial plea offer, 

he would have accepted it.3 To the extent plea counsel could rebut that claim, 

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3 We observe that on the copy of the Commonwealth’s “SMART room offer 

sheet” attached to Appellant’s PCRA petitions, Appellant checked off the line 

to “accept” the offer and signed his name with a date of May 29, 2015—well 

beyond the date Appellant entered the ultimate guilty plea in this case. 

Although the PCRA court decided the inconsistencies in the dates diminished 

the evidentiary value of the document, the Commonwealth does not dispute 

the validity of the offer sheet. Rather, it appears Appellant either initially 
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that issue should be decided at an evidentiary hearing where the PCRA court 

has the opportunity to make necessary credibility determinations. See 

Cousar, supra. Based upon the foregoing, we vacate the order dismissing 

Appellant’s first PCRA petition and remand for an evidentiary hearing. 

Order vacated. Case remanded for evidentiary hearing. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/20

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accepted the offer on May 29, 2014 (and the date was a typographical error) 

prior to rejecting the offer on July 29, 2014, or Appellant somehow attempted 

to resurrect the initial plea offer long after it had expired by belatedly 

“accepting” it. In any event, this inconsistency can be examined at an 

evidentiary hearing.