Com. v. Brown, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTE A. BROWN :
:
Appellant : No. 1807 EDA 2017
Appeal from the PCRA Order May 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001248-2011
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 18, 2018
Donte A. Brown (“Appellant”) appeals from the order denying his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541–9546. We affirm.
We rely on the PCRA court’s statement of the underlying facts and
procedural history. PCRA Court Opinion, 8/10/17, at 1–2. In summary,
following a nonjury trial, Appellant was convicted of multiple firearm
violations1 resulting from a traffic stop of the Crown Victoria Appellant was
driving on December 4, 2010. The trial court sentenced Appellant to
incarceration for an aggregate term of eight years and nine months to
seventeen years followed by five years of probation. Order, 9/27/12. We
____________________________________________
1 18 Pa.C.S. §§ 6105, 6106, 6106.1, and 6108.
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affirmed Appellant’s judgment of sentence. Commonwealth v. Brown, __
A.3d ___, 2809 EDA 2012 (Pa. Super. filed November 12, 2013)
(unpublished memorandum). Appellant did not seek review in the
Pennsylvania Supreme Court.
The PCRA court has provided the subsequent procedural history:
On July 7, 2014, [Appellant] filed a pro se [PCRA] petition
alleging ineffective assistance of counsel. On February 4, 2016,
PCRA counsel filed an Amended PCRA Petition. On April 10,
2017, [the PCRA c]ourt issued a notice of intent to deny
[Appellant’s] PCRA pursuant to Pa. R. Crim. P. 907. [The PCRA
c]ourt denied the PCRA petition on May 22, 2017. On June 10,
2017, [Appellant] filed a Notice of Appeal to the Superior Court
of Pennsylvania.
PCRA Court Opinion, 8/10/17, at 2–3. The PCRA court issued an order
pursuant to Pa.R.A.P. 1925(b), requiring Appellant to file a concise
statement of errors complained of on appeal within twenty-one days. The
Commonwealth points out that Appellant “filed his court ordered Rule
1925(b) statement late, after the PCRA court had issued its Opinion in this
matter. However, as the PCRA court addressed [Appellant’s] claims, no
remand is necessary. Commonwealth v. Blauser, 166 A.3d 428, 430 n.3
(Pa. Super. 2017).” Commonwealth’s Brief at 5 n.2. We agree. See
Commonwealth v. Stephen Brown, 145 A.3d 184, 186 (Pa. Super. 2016),
appeal denied, 165 A.3d 892 (Pa. 2017) (“Instantly, the trial court has
addressed the issue raised in Brown’s untimely Rule 1925(b) statement and,
as such, we may address the issue on its merits.”).
Appellant presents two questions for our consideration:
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I. Should the PCRA court’s order dismissing [Appellant’s]
PCRA petition without an evidentiary hearing be reversed
and a new trial or evidentiary hearing b[e] granted on the
ground that counsel was ineffective for failing to call two
exculpatory witnesses at trial?
II. Should the PCRA court’s order dismissing [Appellant’s]
PCRA [p]etition without an evidentiary hearing be reversed
and a new trial or evidentiary hearing be granted on the
ground that trial counsel was ineffective for failing to
obtain available schematics of the vehicle in question?
Appellant’s Brief at 3.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014). Moreover, “[t]here is no absolute right to an
evidentiary hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then a hearing
is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa.
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Super. 2003)). “[S]uch a decision is within the discretion of the PCRA court
and will not be overturned absent an abuse of discretion.” Commonwealth
v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Appellant’s issues challenge the effective assistance of his trial
counsel. Pennsylvania jurists presume that a PCRA petitioner’s counsel was
effective, unless the petitioner proves otherwise. Commonwealth v.
Williams, 732 A.2d 1167, 1177 (Pa. 1999). We are bound by the PCRA
court’s credibility determinations where there is support for them in the
record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)
(citation omitted). Furthermore, claims of ineffective assistance of counsel
are not self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa.
2002). Consequently, our Supreme Court has explained that, in order to
succeed on a claim of ineffective assistance of counsel, an appellant must
demonstrate (1) that the underlying claim is of arguable merit; (2) that
counsel’s performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the appellant prejudice. Commonwealth
v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
We reiterate that trial counsel cannot be deemed ineffective for failing
to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). Moreover, trial counsel’s approach must be
“so unreasonable that no competent lawyer would have chosen it.”
Commonwealth v. Ervin, 766 A.2d 859, 862–863 (Pa. Super. 2000)
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(quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa. 1981)). Our
Supreme Court has defined “reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth v. Maroney, 235 A.2d 349, 352 (Pa. 1967)) (emphasis in
original; footnote omitted). Finally, prejudice requires proof that there is a
reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citation omitted).
Appellant first complains that trial counsel did not call two exculpatory
witnesses, Jeremy Grant and James Love. Appellant’s Brief at 8. We have
stated:
[T]rial counsel will not be deemed ineffective for failing to call a
witness to testify unless the PCRA petition demonstrates: (1) the
witness existed; (2) the witness was available; (3) counsel knew
of, or should have known of the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
absence of the testimony was so prejudicial to petitioner to have
denied him or her a fair trial.
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Commonwealth v. Charles Brown, 18 A.3d 1147, 1160–1161 (Pa. Super.
2011). “Ineffectiveness for failing to call a witness will not be found where a
defendant fails to provide affidavits from the alleged witnesses indicating
availability and willingness to cooperate with the defense.”
Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).
Here, the arresting officer, Officer Michael Blatchford, testified at trial
that “[w]hen he shone his flashlight into the car’s passenger compartment,
he immediately saw the butt of a black Beretta gun between the driver and
the center console. N.T., 7/26/12, at 9. The gun was one inch away from
Appellant’s body but not attached to his hip. Id. at 9, 15.” Brown, 2809
EDA 2012 (unpublished memorandum at *1). According to Appellant,
Jeremy Grant, who also testified at the suppression hearing, would have
testified at trial that Officer Blatchford found the firearm in the car’s trunk;
James Love, who was not an eyewitness to the traffic stop, would have
testified that the vehicle belonged to him and that it did not have a center
console. Appellant’s Brief at 5–6. In support of his argument, Appellant
attached an affidavit from each witness to his PCRA petition. Amended
PCRA Petition, 2/4/16, at Exhibits A and B. Thus, Appellant argues, trial
counsel:
was clearly aware of the presence of both Jeremy Grant and
James Love. Indeed, Mr. Grant had previously testified as a
defense witness at the Motion to Suppress. Further, both men
were available and willing to testify. Finally, [Appellant] was
clearly prejudiced by counsel’s failure to present these witnesses
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since their testimony would have directly contradicted the
testimony of the arresting officer.
Appellant’s Brief at 9.
In response, the Commonwealth argues that trial counsel “had a
reasonable basis for not calling Grant or Love to testify at trial.”
Commonwealth’s Brief at 9. According to the Commonwealth, defense
counsel’s suppression strategy of establishing that Officer Blatchford
fabricated his testimony about the location of the firearm “proved
unpersuasive as the court credited the officer’s testimony, in spite of the
evidence that he might have been mistaken about whether the car had a
‘center console.’” Id. at 10. Consequently, the Commonwealth continues,
defense counsel presented a new theory at trial, establishing that the other
occupants of the vehicle had access to the firearm, “there was no fingerprint
or DNA evidence tying [Appellant] to the gun, and . . . the gun was not
registered to [Appellant].” Id. at 11. The Commonwealth concludes, “[I]t
was certainly reasonable for trial counsel to employ a strategy that focused
on whether the Commonwealth had proved that [Appellant] possessed the
firearm in question, rather than attempting to resurrect a tenuous theory
that had already failed.” Id. at 12.
The PCRA court explained why Appellant’s first ineffective-assistance
claim was “wrong,” PCRA Court Opinion, 8/10/17, at 5, and no hearing was
needed:
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In order to raise a genuine issue of material fact concerning prior
counsel’s ineffectiveness, a defendant must present sufficient
information in his petition to meet all three prongs of the
ineffectiveness test. In the instant case, [Appellant] cannot
show that trial counsel’s performance was unreasonable,
because it is clear from the record that trial counsel reasonably
chose to discard the strategy used when litigating the failed
motion to suppress, and instead reasonably employed a new
strategy that focused on whether the Commonwealth had proved
that [Appellant] possessed the firearm in question. Because the
original theory failed at the [motion to suppress] hearing, trial
counsel was reasonable in not calling two witnesses that would
have only supported a discarded strategy and distracted [sic]
from his new trial strategy of trying to prove that the gun did not
belong to [Appellant]. Therefore, [Appellant] cannot
demonstrate that counsel was ineffective for failing to call
Jeremy Grant and James Love as witnesses.
Id. at 5–6 (internal citations omitted).
Upon review of the evidence in the light most favorable to the
Commonwealth, we find the evidence of record supports the conclusions of
the PCRA court and its ruling is free of legal error. Moreover, we discern no
abuse of the PCRA court’s discretion in determining that no genuine issues of
material fact existed to warrant a hearing. Trial counsel had a reasonable
basis for his decision not to call Jeremy Grant and James Love at trial. His
suppression strategy to undermine Officer Blatchford’s account based on the
questionable credibility of Jeremy Grant and the non-eyewitness statement
of James Love failed; therefore, he developed a new trial strategy based on
uncontested physical facts regarding the location of the firearm and the
absence of Appellant’s fingerprints on or ownership of the firearm. Thus, we
conclude Appellant’s first ineffective-assistance claim does not warrant relief.
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Appellant’s second complaint is that trial counsel failed to introduce a
technical schematic of a Crown Victoria to demonstrate the absence of a
center console. According to Appellant, the schematic was “readily available
. . . and could have been admitted under the business records exception,
Pa.R.E. 803(6)[,] had an evidentiary hearing been granted.” Appellant’s
Brief at 9. Appellant further argues that the schematic “shows the inside
arm of the driver’s seat of the vehicle fitting into a recessed center piece
(part 63100 on the schematic).” Id. at 10; Amended PCRA Petition, 2/4/16,
at Exhibit C. Thus, Appellant claims, he was prejudiced by counsel’s failure
to introduce such evidence because it would have proven “Officer
Blatchford’s testimony to be demonstrably false.” Appellant’s Brief at 10.
The Commonwealth responds that Appellant failed to demonstrate that
the schematic was admissible and that it actually depicts what he asserts.
Commonwealth’s Brief at 14. Moreover, the Commonwealth argues that
Appellant failed to prove he was prejudiced by counsel’s failure to introduce
the schematic because “the absence of a center console in the vehicle does
not wholesale negate the officer’s testimony that [Appellant] had a gun in
plain view at his side.” Id. at 15.
The PCRA court rejected this ineffective-assistance claim for multiple
reasons:
To begin, [Appellant] failed to prove that the schematic[s] would
even be admissible, as he did not demonstrate that they were
authenticated at trial, what expert witness would have been
called to testify to it, nor how [Appellant] would have overcome
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the prohibition against using hearsay. See Commonwealth v.
W.H.M., Jr., 932 A.2d 155, 161 (Pa 2007) (holding that counsel
was not ineffective for not attempting to introduce inadmissible
evidence). Further, the schematics do not detail the area in
between the two seats where a center console would have been.
Rather, the schematics depict the seats mechanisms. If they
were deemed admissible, they would have only furthered the
failed defense strategy already attempted at the suppression
hearing. Additionally, the absence of a center console would not
rebut Officer Blatchford’s testimony that a gun was in plain view.
Therefore, [Appellant] has also failed to prove that counsel was
ineffective for failing to introduce technical schematics of the
Crown Victoria.
Furthermore, the schematics were part of a defense
strategy that trial counsel reasonably abandoned after it failed at
the [motion to suppress] hearing. At that hearing, trial counsel
questioned Officer Blatchford concerning the center console, and
introduced a photo of a different Crown Victoria where no
console was present. [The trial court] was not persuaded,
instead crediting the Officer’s testimony in spite of the evidence
that the car may have lacked a center console and denied the
motion to suppress. Therefore, [Appellant] cannot demonstrate
that counsel was unreasonable for deciding not to introduce the
schematics at trial.
PCRA Court Opinion, 8/10/17, at 6–7.
Upon review of the evidence in the light most favorable to the
Commonwealth, we find the evidence of record supports the conclusions of
the PCRA court and its ruling is free of legal error. Moreover, we discern no
abuse of the PCRA court’s discretion in determining that no genuine issues of
material fact existed to warrant a hearing. Appellant did not establish a
reasonable probability that the outcome of his trial would have been
different but for defense counsel’s failure to introduce a schematic of the
Crown Victoria. Pierce, 786 A.2d at 213. The trial court credited
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Officer Blatchford’s testimony that he saw the firearm in plain view next to
Appellant; we will not substitute the trial court’s credibility determination
with our own. See Commonwealth v. Chine, 40 A.3d 1239, 1244 (Pa.
Super. 2012) (“This Court shall not undertake to reassess credibility of
witnesses, as it is well settled that we cannot substitute our judgment for
that of the trier of fact.”). Furthermore, contrary to Appellant’s assertion,
the schematic does not detail the area between the two front seats.
Amended PCRA Petition, 2/4/16, at Exhibit C. Finally, although Appellant
argues the schematic would have been admissible as a business record
pursuant to Pa.R.E. 803(6), he did not plead or prove in his petition how he
would have authenticated the schematic at trial. For these reasons, we
conclude Appellant’s second ineffective assistance claim does not warrant
relief.
Finally, we note that this case presents an illegality-of-sentence issue.
“[T]his Court is endowed with the ability to consider an issue of legality of
sentence sua sponte.” Commonwealth v. Orellana, 86 A.3d 877, 882–
883 n.7 (Pa. Super. 2014) (citation omitted).
Appellant was convicted of multiple firearm offenses, including carrying
loaded weapons other than firearms, a summary offense pursuant to 18
Pa.C.S. § 6106.1. The trial court sentenced Appellant on the Section 6106.1
conviction to ninety days of total confinement. Order, 9/27/12, at Count 4.
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Section 9756(c) of the Sentencing Code, pertaining to sentences of
total confinement for summary offenses, provides in relevant part:
(c) Prohibition of parole for summary offenses.—The court
may impose a sentence to imprisonment without the right to
parole under this subsection only when:
(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs,
or both, in which case the sentence shall specify the
number of days to be served; and
(3) the maximum term or terms of imprisonment imposed
on one or more indictments to run consecutively or
concurrently total less than 30 days.
42 Pa.C.S. § 9756(c)(1)–(3). The plain language of Subsection (c)
authorizes trial courts to impose flat sentences of incarceration for summary
offenses only when the sentence is imposed for nonpayment of fines and/or
costs and the maximum term of incarceration is less than thirty days.
Here, Appellant’s flat ninety-day sentence for his summary offense of
carrying loaded weapons other than firearms does not meet the
requirements of Subsection (c), and is therefore illegal. Although the trial
court was authorized pursuant to 18 Pa.C.S. § 1105 to impose a sentence of
imprisonment for not more than ninety days on the Section 6106.1
conviction, it lacked authority to impose a flat ninety-day sentence;
therefore, it was required to impose a minimum term of incarceration. See
42 Pa.C.S. § 9756(c)(1).
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The standard remedy for a trial court’s omission of a minimum
sentence is to vacate the judgment of sentence and remand for
resentencing. See Commonwealth v. Duda, 831 A.2d 728, 733 (Pa.
Super. 2003). However, under circumstances “where the sentencing court
clearly intended to impose the maximum sentence[,] this Court can amend
the sentence to include a minimum term equal to one-half of the maximum.”
Id. (amending flat sentence to include minimum term of incarceration where
court imposed maximum possible sentence for summary offense) (citing
Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. Super. 1994) (amending
flat sentence to include minimum term of incarceration equal to one-half
maximum under circumstances where sentencing court clearly intended to
impose maximum sentence)).
In the case at hand, we are confident that the trial court intended to
impose the maximum sentence because it imposed the maximum possible
sentence of incarceration for Appellant’s summary offense. Order, 9/27/12,
at Count 4; 18 Pa.C.S. § 1105. Therefore, we amend Appellant’s ninety-day
sentence to include a minimum term of forty-five days of incarceration.
Duda, 831 A.2d at 733; Cain, 637 A.2d at 659.
Judgment of sentence amended. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/18
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