When a defendant files a PCRA petition after being convicted at trial, whether it is for murder, capital murder or robbery, they may request an evidentiary hearing pursuant to Pennsylvania law. 42 Pa.C.S. Section 9545(d) Evidentiary hearing, provides:

(1) Where a petitioner requests an evidentiary hearing, the petition shall include a signed certification as to 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. Failure to substantially comply with the requirements of this paragraph shall render the proposed witness’s testimony inadmissible.

(2) No discovery, at any stage of proceedings under this subchapter, shall be permitted except upon leave of court with a showing of exceptional circumstances.

(3) When a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel’s representation as to that issue shall be automatically terminated. An evidentiary hearing is essentially a hearing where the court hears and considers evidence to make a legal decision. In the context of a PCRA petition, the court would decide on whether to grant the petition based on the ground(s) of appeal raised in the petition.

An evidentiary hearing is often requested when the issue of appeal is ineffective assistance of counsel, which is a commonly raised issue in a PCRA petition.

Related: PA PCRA Petition – Can You Appeal an Attempted Murder Conviction Due to a Lawyer’s Inexperience?

Simply put, a defendant who raises a claim of ineffective assistance of counsel is alleging that the lawyer was ineffective at some time before, during or after trial. If the trial lawyer was effective during trial, then the defendant would not have been convicted.

In general, a defendant’s trial counsel is presumed to be effective. Therefore, a defendant filing a PCRA due to ineffective assistance of counsel has the burden to prove that their lawyer was ineffective at trial and must satisfy a 3 prong test:

  1. the claim of ineffectiveness of counsel has arguable merit;
  2. defense counsel had no reasonable basis for the act or omission in question; and
  3. the defendant was prejudiced by the defense counsel’s actions, i.e., but for his counsel’s acts or omissions, the result of the trial would have been different.

It is important to note that a defendant does not have an absolute right to an evidentiary hearing. A hearing shall be granted if the petition raises material issues of fact. The PA Supreme Court has held that “where it is clear that allegations of ineffectiveness are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 361 (1984).

However, if a hearing is granted for a PCRA petition based on ineffective assistance of counsel, the trial attorney is often ordered to testify as a witness at the hearing and answer questions, such as why they made certain decisions at trial, failed to object to evidence that may not have been admissible, etc.

Click here to continue to part 2 of the article which discusses when a court may grant an evidentiary hearing.


If you or a loved one is considering filing a PCRA petition after a murder conviction in the Philadelphia area, please contact our office for a FREE case evaluation. Our criminal defense lawyers are experienced trial and appellate lawyers. (215) 564-0644

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