[J-2-2024] [MO: McCaffery, J.]

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 87 MAP 2023 : Appellant : Appeal from the Order of the : Superior Court at No. 386 MDA : 2022 entered on October 20, 2022, v. : Vacating and Remanding the PCRA : Order of the York County Court of : Common Pleas at No. CP- 67-CR- RASHAAN LONDALE GREER, : 0005885-2010 entered on January : 21, 2022 Appellee : : SUBMITTED: January 2, 2024

CONCURRING AND DISSENTING OPINION

JUSTICE DONOHUE DECIDED: June 6, 2024 Although I agree with the Majority’s conclusion that the Superior Court did not err in refusing to assess the issues raised in Rashaan Londale Greer’s merits brief before that court, I disagree with its decisions to reverse the order of the Superior Court and order it to remand this matter to the PCRA 1 court for the sole purpose of conducting a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

In this appeal from the order denying Greer’s first PCRA petition, Greer indicated before the Superior Court his desire to raise ineffective assistance of counsel (“IAC”) claims against his PCRA counsel, Anthony J. Tambourino, Esquire, while Attorney Tambourino was still representing Greer. Recognizing that he could not raise his own ineffectiveness, Attorney Tambourino filed a petition for remand for the appointment of new counsel, but the Superior Court deferred a decision on the remand application to the

After the Commonwealth’s failed attempt to seek reargument of that decision in the Superior Court, this Court granted review of the following question: Whether a court on appeal should rule on the merits of an existing appeal of a PCRA court order before remanding a case where a PCRA petitioner raised new/additional layered claims of PCRA counsel’s ineffectiveness pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), for the first time before the appellate court, where there were issues of merit that could have been disposed of prior to remand for new issues.

Commonwealth v. Greer, 303 A.3d 1053 (Pa. 2023) (per curiam) (brackets omitted, citation reformatted).

The Commonwealth argues that, when confronted with new IAC claims directed at PCRA counsel for the first time on appeal, Bradley, in conjunction with Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), requires the appellate court to first address all issues “if it can do so prior to remanding the case to the PCRA court to hold an evidentiary hearing on issues concerning the stewardship of PCRA counsel.” Commonwealth’s Brief at 12. The Majority rejects this argument, correctly distinguishing both Hubbard and Commonwealth v. Clemmons, 479 A.2d 955 (Pa. 1984), a Hubbard-era decision. 2 I fully

When Attorney Tambourino learned of Greer’s wish to raise his ineffectiveness, he advised the Superior Court of that fact and applied for a remand before the briefing schedule was issued. 3 Before the Superior Court responded to the application for remand, it issued a briefing schedule. Brief Schedule Order, 4/28/2022. Shortly thereafter, the Superior Court issued a per curiam order deferring disposition to the merits panel. Order, 5/4/2022, at 1 (emphasis in original).

However, because the court had already issued a briefing schedule, Attorney Tambourino was required to file a merits brief in which he only raised claims preserved in Greer’s Pa.R.A.P. 1925(b) statement. See Greer’s Superior Court Brief at 4 n.1 (“After further review of the record and the trial court’s [Rule] 1925(a) Opinion, counsel has proceeded only on [i]ssues [raised in] the [Rule]1925(b) [s]tatement[.]”). Nonetheless, the application for remand was still pending before the Superior Court panel, and the panel ultimately granted the application. Greer, 2022 WL 11514559 at *2 (“Thus, we agree with Attorney Tambourino that we must remand for the PCRA court to appoint [Greer] new counsel who can assist him in raising his PCRA-counsel ineffectiveness claims on appeal.”).

Attorney Tambourino may have exercised professional judgment in deciding not to present those issues. This Court explicitly rejected such a procedure in Jette[.]”) (citing Commonwealth v. Jette, 23 A.3d 1032, 1040-42 (Pa. 2011)).

[J-2-2024] [MO: McCaffery, J.] - 3 The Majority states that “when faced with a clear indication that Greer wished to pursue claims of Attorney Tambourino’s ineffectiveness,” the Superior Court “should have immediately remanded the case to the PCRA court for an on-the-record assessment of Greer’s rights and wishes[,]” and that “[o]nly after clarifying Greer’s representation status can a proper merits brief be filed.” Majority Op. at 7-8. Indeed, had nothing else occurred in the Superior Court, I would be inclined to agree with the Majority that a remand for a Grazier hearing was required. 4 At that stage, the Superior Court knew only that Greer sought to raise additional IAC claims targeting Attorney Tambourino. Although nothing from the record available at that time indicated that Greer desired to proceed pro se, Attorney Tambourino’s continued representation of Greer presented a conflict of interest that potentially implicated our jurisprudence that counseled toward a remand for a Grazier hearing. 5 But there were subsequent procedural developments in this case that resolved any ambiguity regarding whether Greer desired then or now to proceed pro se.

Before seeking this Court’s review, the Commonwealth filed an application for reargument before the Superior Court. On the same day, Attorney Tambourino filed another application on Greer’s behalf asking the Superior Court to remand to the PCRA court for the appointment of new appellate PCRA counsel. Application for Remand, 11/03/2022, at 3-4. The Superior Court granted that application, and the PCRA court appointed Greer’s current counsel, Brandy Hoke, Esquire. Order Appointing PCRA Counsel, 11/16/2022, at 1.

[J-2-2024] [MO: McCaffery, J.] - 4 Attorney Hoke subsequently filed an answer to the Commonwealth’s application for reargument on Greer’s behalf. Therein, Greer argued that the Superior Court panel did not err in remanding [Greer]’s case without deciding the preserved and briefed issues on appeal. Remanding the case will allow for the record to be more fully developed and allow for the disposition of any and all newly-raised ineffectiveness claims, both against trial counsel and PCRA counsel, to be fully litigated prior to appellate court review.

Greer’s Answer to Application for Reargument at 5. Greer further contended that “remand for appointment of new counsel is appropriate and the Panel’s decision need not be vacated and reargued.” Id. at 7. Likewise, in the brief submitted to this Court, Greer continues to urge “this Court to affirm the decision of the Superior Court to remand this case to the PCRA court to hold an evidentiary hearing on issues concerning the stewardship of PCRA counsel.” Appellee’s Brief at 11.

Accordingly, in my view, whatever doubts previously existed regarding Greer’s potential desire to proceed pro se in this case have fully dissipated. Greer is currently represented by Attorney Hoke and, thus, there is no potential conflict of interest presented by current counsel. Furthermore, Greer’s current counsel has clearly articulated Greer’s desire to litigate his new IAC claims before the PCRA court in the first instance and neither Attorney Hoke nor Greer has expressed any opposition to the Superior Court’s order directing the PCRA court to appoint new counsel on his behalf for that purpose. There is no longer any reason to remand for a Grazier hearing.

Moreover, the Majority reverses the Superior Court under the assumption that Greer may want to proceed pro se with the current appeal. Majority Op. at 12 (stating “the Superior Court’s decision … remove[s] this option from Greer in contravention of our precedent”). Given the counseled opposition to reargument before the Superior Court

[J-2-2024] [MO: McCaffery, J.] - 5 and in this Court, there is no longer any reason to proceed under that assumption. I would simply affirm the Superior Court’s order. 6 Thus, while I agree with the Majority’s resolution of the question presented for our review, I respectfully dissent from its decisions to reverse the Superior Court’s order and remand for a Grazier hearing.

Justice Brobson joins this concurring and dissenting opinion.

[J-2-2024] [MO: McCaffery, J.] - 6