J-S77019-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVE RICHARD MCCOLLUM, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 288 MDA 2017

Appeal from the PCRA Order January 11, 2017

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

No(s): CP-22-CR-0005177-2011

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 09, 2018

Steven R. McCollum appeals pro se from the order, entered in the Court 

of Common Pleas of Dauphin County, dismissing his petition filed pursuant to 

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. After careful review, 

we reverse and remand for an evidentiary hearing.

McCollum was arrested and charged with attempted murder,1

aggravated assault,2 possession of a firearm (prohibited),3 and carrying a 

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1 18 Pa.C.S. § 2502.

2 18 Pa.C.S. § 2702(a)(1).

3 18 Pa.C.S. § 6105(a)(1).
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firearm without a license.4 The facts underlying the case were summarized 

by our Court on direct appeal as follows:

In the early morning of October 9, 2011, Timothy Juett (“Juett”) 

suffered a gunshot wound to the back following an altercation over 

a parking space. At approximately 2:39 a.m., Officer Nathan 

Isham (“Officer Isham”) of the Harrisburg Police Department 

received a dispatch of shots fired in the area of 35 North Summit 

Street. Officer Isham arrived on the scene approximately three 

minutes later and discovered the victim on 13th and State Street. 

Shortly thereafter, Hany Ahmed (“Ahmed”), a friend of the victim 

and witness to the incident, arrived and provided Officer Isham

with information regarding the appearance of the suspect and his 

vehicle. Officer Isham put out information over the radio that the 

suspect was driving a white Cadillac with a blue ragtop and a 

license plate beginning with “J-M-R.” 

While en route to the scene of the shooting, Officer Mike Rudy 

(“Officer Rudy”) of the Harrisburg Police Department observed a 

white Cadillac with a blue ragtop and a license plate beginning 

with “H-M-R” driving on the 100 block of Summit Street. Because 

the vehicle matched the description of the suspect vehicle, Officer 

Rudy followed the vehicle in his police cruiser but did not activate 

his lights. After approximately three blocks, the vehicle slowed 

down, both of its front doors opened, and its occupants attempted 

to flee. Officer Rudy then activated his emergency equipment. 

The vehicle then pulled over to the side of the road and struck a 

parked car. The driver fled the vehicle and dropped something on 

the ground as he ran. Officer Rudy then arrested the driver as he 

attempted to re-enter the vehicle. Once the driver of the vehicle 

and the remaining passengers were detained, Officer Rudy 

discovered a handgun in the area where he observed the driver 

drop something.

Once the passengers of the vehicle were detained, Officer Isham

drove Ahmed to see if he could identify any of the individuals as 

the shooter. With each individual handcuffed and seated on the 

curb, the police stood each man up individually while Ahmed 

observed from Office Isham’s police cruiser. Ahmed then 

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4 18 Pa.C.S. § 6106(a)(1).
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identified the driver of the vehicle, McCollum, as the person 

responsible for shooting Juett.

Prior to trial[,] McCollum filed a motion to suppress the evidence 

obtained pursuant to the traffic stop and Ahmed’s identification of 

him as the shooter. Following a suppression hearing on October 

2, 2012, the motion was denied. On December 18, 2012, 

following a jury trial, McCollum was convicted of the 

aforementioned crimes and sentenced to 20-40 years of 

incarceration. 

Commonwealth v. McCollum, 646 MDA 2013 (unpublished memorandum 

decision filed Feb. 19, 2014) (Pa. Super. 2014), at 1-3. In December 2012, 

McCollum filed post-sentence motions that were denied. In April 2013, 

McCollum filed a timely direct appeal; our Court affirmed his judgment of 

sentence. Id. On March 24, 2014, McCollum filed a petition for allowance of 

appeal with the Pennsylvania Supreme Court, which was denied. 

On June 24, 2015, McCollum filed a timely pro se PCRA petition. Counsel 

was appointed; he filed two supplemental petitions on McCollum’s behalf. On 

April 26, 2016, appointed counsel filed a Turner/Finley5 no-merit letter and 

accompanying request to withdraw. On December 7, 2016, the PCRA court 

permitted counsel to withdraw and issued its Pa.R.Crim.P. 907 notice of intent 

to dismiss McCollum’s petition, advising McCollum that he had 20 days to 

respond. McCollum did not receive the notice to dismiss until December 29, 

2016 – beyond the allotted 20-day response window. On January 1, 2017, 

McCollum filed a motion for extension of time to file objections to the Rule 907 

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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notice. On January 11, 2017, the PCRA court dismissed McCollum’s PCRA 

petition without a hearing. On January 17, 2017, the court issued an order 

denying McCollum’s request for an extension to respond to its Rule 907 notice, 

noting that “Petitioner was given 20 days from [December 7, 2016] to file a 

response [and] [a]s neither a response nor a request for extension was 

received within that timeframe, this Court dismissed the PCRA Petition by 

Order dated January 11, 2017.” Order, 1/19/17. 

McCollum filed a timely notice of appeal and court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. He presents 

the following issues for our review:

(1) Whether the lower court erred in denying [McCollum] PCRA 

relief without a hearing on his claim that counsel’s erroneous 

advice led him to waive his right to testify conflicting with 

the standard set forth in Commonwealth v. Walker, 110 

A.3d 1000 (Pa. Super. 2015).

(2) Whether [McCollum’s] due process rights were violated 

when he was not provided adequate time to respond to the 

[Rule] 907 notice as the PCRA court violated Rule 907 by 

failing to grant an extension of time for [McCollum] to file 

objections to the [Rule] 907 notice.

(3) Whether the lower court erred in denying [McCollum] PCRA 

relief without a hearing on his claim that counsel rendered 

ineffective assistance[6]for failing to impeach the 

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6

 It is well-established that “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. Koehler, 36 A.3d 121, 132 (Pa. 2012). To prevail on an 

ineffectiveness claim, the petitioner has the burden to prove that “(1) the 

underlying substantive claim has arguable merit; (2) counsel whose 
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Commonwealth’s main witness by cross-examining him on 

potential bias and motives.

(4) Whether the lower court erred in denying [McCollum] PCRA 

relief without a hearing on his claim that counsel rendered 

ineffective assistance for failing to request that the jury be 

polled.

(5) Whether the lower court erred in denying [McCollum] PCRA 

relief without a hearing on his claim that counsel rendered 

ineffective assistance for failing to investigate by 

interviewing potential witnesses.

Appellant’s Brief, at 4 (renumbered for ease of disposition).

On appeal from the denial of PCRA relief, this court must determine 

whether the post-conviction court’s findings were supported by the record and 

whether the court’s order is otherwise free of legal error. Commonwealth 

v. Blackwell, 647 A.2d 915 (Pa. Super. 1994). The findings of the postconviction court will not be disturbed unless they have no support in the 

record. Id.

The decision of whether or not to testify on one's own behalf is ultimately 

to be made by the defendant after full consultation with counsel. 

Commonwealth v. Uderra, 706 A.2d 334 (Pa. 1998). In order to sustain a 

claim that counsel was ineffective for failing to advise the defendant of his 

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effectiveness is being challenged did not have a reasonable basis for his or 

her actions or failure to act; and (3) the petitioner suffered prejudice as a 

result of counsel's deficient performance.” Commonwealth v. Sneed, 45 

A.3d 1096, 1106 (Pa. 2012). “A petitioner establishes prejudice when he 

demonstrates ‘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, 532-33 (Pa. 2009). 

The failure to satisfy any one of the three prongs will cause the entire claim 

to fail. Sneed, 45 A.3d at 1106 (citation omitted).
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rights in this regard, the defendant must demonstrate either that counsel 

interfered with his right to testify, or that counsel gave specific advice so 

unreasonable as to vitiate a knowing and intelligent decision as to whether to 

testify on his own behalf. Id. “The appropriate standard for assessing 

whether a defendant was prejudiced by trial counsel’s ineffectiveness 

regarding the waiver of his right to testify is whether the result of the waiver 

proceeding would have been different absent counsel’s ineffectiveness, not 

whether the outcome of the trial itself would have been more favorable had 

the defendant taken the stand.” Commonwealth v. Walker, 110 A.3d 1000, 

1005 (Pa. Super 2015) (emphasis added).

Instantly, McCollum stated, in open court, that after consulting with 

counsel he voluntarily decided not to testify at trial. See N.T. Trial, 10/17/12, 

at 529-32. Thus, on the face of the trial record, it does not appear that counsel 

interfered with McCollum’s right to testify. Uderra, supra. The PCRA court, 

however, concludes that counsel’s decision to advise McCollum not to testify 

was both reasonable and designed to effectuate his client’s best interest,

where counsel told McCollum that the Commonwealth would impeach 

McCollum regarding his prior federal firearms and state firearms and

aggravated assault convictions. Trial Court Opinion, 12/8/16, at 4. The court 

further opines that McCollum is not entitled to relief on this claim because he 

“fails to demonstrate how, had he testified, the outcome of the proceedings 

would have been different.” Id.
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In Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000), our Supreme 

Court stated:

Trial counsel confirmed that Appellant desired to testify and that 

he advised Appellant not to testify because he could be impeached 

by his criminal record. We agree with Appellant that such advice 

was clearly unreasonable as it is well-established that evidence of 

prior convictions can only be introduced for the purpose of 

impeaching the credibility of a witness if the conviction was for an 

offense involving dishonesty or false statement. Commonwealth 

v. Randall, [] 528 A.2d 1326 (Pa. 1987). Appellant’s convictions 

of drug trafficking and firearm offenses did not involve dishonesty 

or false statements and therefore would not have been admissible 

to impeach his credibility. As the common pleas court credited 

Appellant’s testimony that his decision not to testify was based on 

this erroneous advice, such decision cannot be deemed knowing 

or intelligent.

Id. at 1104-1105 (citations to record omitted).

As in Nieves, we cannot deem McCollum’s decision not to testify as 

either knowing or intelligent where counsel allegedly advised McCollum not to 

testify based on the incorrect belief that the Commonwealth would impeach 

him on his prior non-crimen falsi convictions. Uderra, supra. Additionally, 

we recognize that the trial court applied the incorrect standard in assessing 

this claim. The proper inquiry is not whether McCollum’s testimony would 

have changed the outcome of his trial, but, rather, whether the result of the 

waiver proceeding would have been different absent counsel’s ineffectiveness. 

Walker, supra.

Because McCollum’s petition was dismissed without a hearing, we do 

not have the benefit of counsel’s testimony explaining why, in fact, he advised 

McCollum not to testify. Cf. Nieves, supra. Under such circumstances, the 
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PCRA court erred in dismissing McCollum’s petition without a hearing where 

there was a genuine issue of material fact that may entitle him to relief. See

Pa.R.Crim.P. 907(2) (“A petition for post-conviction collateral relief may be 

granted without a hearing when the petition and answer show that there is no 

genuine issue concerning any material fact and that the defendant is entitled 

to relief as a matter of law.”).7

Accordingly, we remand for the appointment of PCRA counsel, see

Pa.R.Crim.P. 904(C),8 and a hearing on McCollum’s claim. If, after the 

hearing, the PCRA court concludes that counsel’s decision was not reasonable 

and that he was ineffective in advising McCollum not to testify at trial, a new 

trial shall be ordered. If, however, the PCRA court concludes that counsel was 

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7 Having concluded that the court improperly dismissed McCollum’s petition 

without a hearing, we also find that dismissing his petition without first giving 

McCollum the opportunity to respond to the court’s Rule 907 notice was 

erroneous and that permitting counsel to withdraw pursuant to Turner/Finley

was likewise improper. Cf. Commonwealth v. Bond, 630 A.2d 1281 (Pa. 

Super. 1993) (where both counsel and the court scrupulously followed 

Turner/Finley procedure, counsel wrote detailed “no-merit” letter to court 

and forwarded copy of letter to defendant, record contained numerous 

correspondence between defendant and counsel during which counsel 

explained repeatedly that PCRA proceedings were not designed to allow 

convicted persons to reassert claims that have been litigated to finality, 

defendant did not have meritorious claim that he did not receive Rule 907 

notice; defendant was well aware of deficiencies in his claims and of counsel’s 

intention to withdraw).

8 See Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented defendant satisfies the 

judge that the defendant is unable to afford or otherwise procure counsel, the 

judge shall appoint counsel to represent the defendant on the defendant's first 

petition for post-conviction collateral relief.”).
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not ineffective for advising McCollum to not testify, then it shall dismiss his 

petition.9

Order reversed. Case remanded for the appointment of counsel and an

evidentiary hearing. Jurisdiction relinquished.

BENDER, P.J.E., Joins the memorandum.

STEVENS, P.J.E., Files a Dissenting Memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2018

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9 We, however, do not find merit in the remainder of McCollum’s claims: (1) 

counsel cross-examined Ahmed extensively on his inconsistent statements 

regarding the timeline of events and his identification and description of the 

assailant; (2) McCollum has not offered any evidence to show that any of the 

jurors did not voluntarily join in the announced, unanimous verdict, see 

Commonwealth v. Johnson; 459 A.2d 5 (Pa. Super. 1983); and (3) 

McCollum fails to explain exactly what material evidence Ahmed Soweilam 

would have provided to exculpate him, see Commonwealth v. Polk, 500 

A.2d 825 (Pa. Super. 1985).