Part 1 of this article discussed a defendant’s right to request an evidentiary hearing in a PCRA petition after being convicted at trial (murder, capital murder, robbery, etc.). An evidentiary hearing is often requested when the issue raised in a PCRA petition is ineffective assistance of counsel.

However, though a defendant can request an evidentiary hearing on the issue of ineffective assistance of counsel, the defendant does not have an absolute right to a hearing. Part 2 of this article will discuss when a court may grant an evidentiary hearing.

Related: PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims


If there are factual issues to be resolved, the court is likely to grant defendant’s request for an evidentiary hearing. On the other hand, if there are no genuine issues concerning any material fact, the court may dismiss a PCRA petition based on the petition, and an evidentiary hearing is not required.

The Pennsylvania Supreme Court has provided that “[t]he controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition.” Commonwealth v. Weddington, 514 Pa. 46, 50, (1987).

In another Pennsylvania Supreme Court case, Commonwealth v. Stanley, the defendant was found guilty of robbery after a jury trial. He then filed a PCRA petition based on ineffective assistance of counsel and requested a hearing. The defendant asserted in his PCRA petition that his counsel was ineffective for having failed to call 2 witnesses listed on his pretrial alibi notice.

Defendant’s petition was denied without a hearing on the basis that there were no genuine issues concerning any material fact. The defendant appealed to the Pennsylvania Supreme Court.

The PA Supreme Court discussed the elements necessary to determine when counsel was ineffective in failing to present a witness, which include:

  • the existence and availability of the witness,
  • counsel’s actual knowledge or duty to know of the witness,
  • whether the witness was willing and able to appear/cooperate on the defendant’s behalf, and
  • the necessity for the proposed testimony in order to avoid justice.

The Supreme Court held that defense counsel was clearly aware of these witnesses and presented their proposed testimony in defendant’s notice of alibi. According to the defendant, the witnesses were present at trial. It was inconceivable that defense counsel was unaware of the witnesses’ willingness to cooperate since he filed the notice of alibi. In addition, the court provided that the defense was based on misidentification; therefore, the witnesses would have supported defendant’s defense. The Supreme Court could not comprehend why the 2 witnesses were not called at trial and held that a hearing should have been granted to ask trial defense counsel why he didn’t call the 2 witnesses at trial.


If you or a loved one is considering filing a PCRA petition in the Philadelphia area after a conviction for murder, capital murder or robbery, 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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