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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CALVIN MORRIS : : Appellant : No. 1464 EDA 2022 Appeal from the PCRA Order Entered April 26, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0003804-2016

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 29, 2023 Appellant, Calvin Morris, appeals from the April 26, 2022 order entered in the Court of Common Pleas of Philadelphia County, dismissing his second amended petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 P.C.R.A. §§ 9541-9546. Appellant contends his trial counsel was ineffective for failing to litigate a motion to suppress. Although the PCRA court originally denied Appellant’s petition, the court subsequently issued a Rule 1925(a) opinion explaining that, “considering the issues as framed in the petitions in conjunction with those framed on appeal,” the court had reached a different conclusion. Rule 1925(a) Opinion, 9/7/22, at 10. Finding no error J-S31024-23

in the PCRA court’s revised determination, we vacate the April 26, 2022 order and remand.1 Briefly, after an April 28, 2017 bench trial, Appellant was convicted of various firearms violations stemming from a March 31, 2016 vehicle stop. His post-sentence motions were denied and he filed a direct appeal to this Court.

On April 10, 2019, we affirmed the judgment of sentence. Our Supreme Court denied his petition for allowance of appeal on August 19, 2019.

Appellant filed a timely PCRA petition on October 11, 2019, contending that trial counsel was ineffective for failing to litigate a motion to suppress.

Counsel was appointed and filed an amended PCRA petition on February 17 2021, reiterating the same issue. The Commonwealth filed a motion to dismiss. The PCRA court conducted an evidentiary hearing in December 2021.

Based on information elicited during the proceedings, the court permitted Appellant to file a second amended petition. In that petition, Appellant repeated the claim relating to the failure to litigate a motion to suppress and added claims of ineffectiveness for failure to file a motion to disclose a

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1 We recognize that:

Under the applicable standard of review, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court. However, this Court applies a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).

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confidential informant and for failure to impeach the credibility of a police officer relating to his source of information that Appellant possessed a firearm.

Second Amended PCRA Petition, 1/18/22, at ¶ 2. In response, the Commonwealth filed a second motion to dismiss.

The PCRA court dismissed the petition on April 26, 2022. This timely appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

In its Rule 1925(a) opinion, the PCRA court explained that the issues as framed in Appellant’s first and second amended petition did not merit a finding of trial counsel ineffectiveness. Rule 1925(a) Opinion, 9/7/22, at 10.

However, the court noted that PCRA counsel argued on appeal not just that trial counsel was ineffective for failing to litigate a motion to suppress evidence, but also that counsel was ineffective for failing to question the arresting officers about the existence of a confidential informant whose information led to the traffic stop and Appellant’s arrest. “Whether or not a CI actually existed is a question that was raised as a result of Officer Langford’s testimony at the evidentiary hearing.” Id. “While this is not an argument made in the aforesaid PCRA petition, it is part and parcel of Appellant’s claim concerning trial counsel’s failure to act.” Id. at 11. The court further determined that Appellant was prejudiced by counsel’s ineffectiveness and that there was a reasonable probability of a different outcome absent the error.

Id. at 12.

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In its Rule 1925(a) opinion, the PCRA court thoroughly recounted the procedural and factual background of the case and explained in detail, with citation to legal authority, the basis for the initial dismissal of Appellant’s petition. The court then explained that matters raised during the December 2021 evidentiary hearing, coupled with the framing of issues being raised in this appeal, caused the court to reach a different conclusion, i.e., that absent counsel’s failure to act, “there is a reasonable probability that a suppression motion would have been granted.” Id. at 12.2 The Commonwealth does not challenge the PCRA court’s assessment of the potential for PCRA relief based on an argument not originally raised on appeal, nor does the Commonwealth argue against a remand. However, because PCRA counsel failed to argue the issue that the PCRA court now finds to have merit, and because PCRA counsel cannot raise his own ineffectiveness based on the failure to raise an issue before the court below, the Commonwealth suggests that new counsel be appointed on remand.

Commonwealth Brief at 8-9 (citing Commonwealth v. Bradley, 261 A.3d 381, 398, 401 (Pa. 2021)).

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2 On February 23, 2023, Appellant filed an application with this Court seeking a remand to the PCRA court for reconsideration. By order entered on March 16, 2023, we denied the application for remand without prejudice to Appellant’s right to raise the issue again in his appellate brief.

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Based on our review of the record, the PCRA court’s Rule 1925(a) opinion, and the relevant authorities, we agree with the PCRA court that its order of dismissal should be vacated and the case remanded to the PCRA court for further proceedings. Moreover, we agree with the Commonwealth that new counsel should be appointed on remand. We hereby adopt the PCRA court’s September 7, 2022 opinion as our own and incorporate it herein by reference as if fully set forth. In the event of any further filings, the parties shall append a copy of the September 7, 2022 opinion to their filings.

Order vacated. Case remanded for further proceedings in accordance with this Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2023

-5- 0052_Opinion Circulated 09/08/2023 03:24 PM