Com. v. Brown, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BERNIE BROWN :
:
Appellant : No. 834 EDA 2017
Appeal from the PCRA Order January 27, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014866-2008
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 29, 2018
Bernie Brown appeals, pro se, from the order entered in the Court of
Common Pleas of Philadelphia County dismissing his petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The trial court set forth the relevant factual background of the case as
follows:
On August 3, 2008 [Brown] and his neighbor, Shakeya Green, had
a dispute over an illegally parked car in front of 1255 Adams
Avenue in Philadelphia. Ms. Green, who lived with her boyfriend,
Christopher Lancaster, and their two children, had noticed that a
car was parked in the middle of Adams Avenue and was thus
blocking incoming and outgoing traffic. Ms. Green knocked on
[Brown’s door;] [Green] had never met [Brown]. [Brown] and his
girlfriend, to whom the car belonged, answered the door, and the
three got into an argument. Ms. Green then called Mr. Lancaster,
who came over and “had words” with [Brown].
Two days later, on August 5, 2008, Mr. Lancaster was sitting in
his Jeep in front of his apartment at 1255 Adams Avenue. Mr.
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Lancaster was talking to his uncle, who lived across the street,
when [Brown] approached him. [Brown] asked Mr. Lancaster if
he wanted to talk about the argument they had two days before.
Mr. Lancaster waved him away and turned his back to [Brown].
As soon as he turned around, [Brown] shot Mr. Lancaster in the
back. The gunshot spun him around so that he was facing
[Brown]. As [Brown] kept shooting, Mr. Lancaster attempted to
crawl under his Jeep. This led [Brown] to continue to shoot at Mr.
Lancaster under the Jeep. Mr. Lancaster screamed to [Brown],
“You already shot me, what else do you want to do, kill me now?”
This failed to deter [Brown], who continued to shoot, ultimately
hitting [Mr. Lancaster] eight times. [Brown] then fled the scene
in a black car. Mr. Lancaster’s uncle tried to help him into his
apartment and then called the police.
At the time of the shooting, Ms. Green had been sleeping in the
apartment she shared with Mr. Lancaster. She was awakened by
gunshots, looked out the bedroom window and saw [Brown] fire
the last two shots at Mr. Lancaster. She ran downstairs to the
kitchen window, where she saw [Brown] leave in a black car. Ms.
Green then called the police.
Mr. Lancaster was transported to Temple University Hospital,
where he remained for [2½] weeks. He had been shot in the back,
thigh, knee, chin, armpit, and arm. Before he was brought into
surgery, detectives showed Mr. Lancaster a photograph of
[Brown], and Mr. Lancaster identified [Brown] as the shooter.
Two days later, police returned to the hospital to interview Mr.
Lancaster, and he again identified [Brown] as the shooter.
[Brown] was apprehended and arrested for the crime by the
Warrant Unit approximately two months later.
Trial Court Opinion, 1/25/12, at 2-3 (record citations and footnotes omitted).
On October 28, 2009, Brown was convicted by a jury of attempted
murder,1 aggravated assault,2 possession of a firearm by a prohibited person,3
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1 18 Pa.C.S §§ 902, 2502.
2 18 Pa.C.S. § 2702(a)(1).
3 18 Pa.C.S. § 6105(a)(1).
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carrying a firearm without a license,4 and possessing an instrument of crime.5
On December 2, 2009, the trial court sentenced Brown to an aggregate
sentence of 24-48 years’ incarceration. Brown did not file post-trial motions
or a direct appeal. On April 30, 2010, Brown filed a timely first PCRA petition
alleging trial/sentencing counsel was ineffective for failing to file post-
sentence motions or a direct appeal and seeking reinstatement of his appellate
rights. Brown’s direct appeal rights were reinstated. On appeal, our Court
affirmed his judgment of sentence. See Commonwealth v. Brown, 3015
EDA 2011 (Pa. Super. filed Aug. 14, 2012).
On January 4, 2013, Brown filed another pro se PCRA petition; counsel
was appointed to represent him. Despite being represented, Brown filed two
additional amended PCRA petitions on June 20, 2014 and July 9, 2014.
Counsel subsequently filed a Finley6 “no-merit” letter stating there was no
merit to Brown’s claims and seeking withdrawal from the case. The court
subsequently issued its Pa.R.Crim.P. 907 notice to dismiss Brown’s petition
without a hearing. Brown filed a pro se response to the Rule 907 notice,
asserting five additional claims not raised in his original petition. In response,
the court directed PCRA counsel to review these additional claims and either
file an amended petition or amended Finley “no-merit” letter. Counsel
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4 18 Pa.C.S. § 6106(a)(1).
5 18 Pa.C.S. § 907(a).
6 Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988).
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complied with the court’s directive and filed an amended Finley “no-merit”
letter stating that he had reviewed Brown’s additional claims and that they
were meritless. On January 27, 2017, the court dismissed Brown’s petition
without a hearing. He filed a timely appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
On appeal, Brown presents the following issues for our review:
(1) W[ere] all counsel[] ineffective[7] for not arguing the
ineffectiveness of John M. Belli, Esquire’s ineffective
assistance for failing to file a[n] Allocat[u]r [Petition] with[]
the Pennsylvania Supreme Court on Appellant’s one and
only [d]irect [a]ppeal?
(2) W[ere] all counsel[] ineffective for not arguing the
ineffectiveness of Trial Counsel for not objecting to improper
Jury Charges of attempt[ed] murder and that the
Commonwealth must prove by a pr[e]p[o]nderance of the
evidence “to kill another human being with malice,” when
the Court charging the jury with attempt[ed] murder was
defective, and in violation of Pennsylvania Suggested
Standard Criminal Jury Instruction 12.901 A, which states
malice must be proven in order to convict one of attempt
murder?
(3) W[ere] all counsel[] ineffective for not arguing the
ineffectiveness of trial counsel Mr. Ciancaglini for failure to
object to trial [c]ourt’s charge [that] it failed to concisely
include the (3) three elements needed, where instead the
word “elements” was used instead, [especially . . . where
the charge is [a]ttempted [m]urder, the [c]ourt must
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7 With respect to claims of ineffective assistance of counsel, we begin with the
presumption that counsel is effective. Commonwealth v. Spotz, 47 A.3d
63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner must
plead and prove, by a preponderance of the evidence, three elements: (1)
the underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for his or her action or inaction; and (3) the petitioner suffered prejudice
because of counsel’s action or inaction. Id. (citation omitted).
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ensure the [j]ury is instructed that malice alone is not
sufficient to sustain the charge?
(4) W[ere] all counsel[] ineffective for not arguing that [t]rial
[c]ounsel Mr. Ciancaglini [was] ineffective for not looking
into the criminal history of Christopher [L]ancaster, and his
girl firend [sic] Shakeya Green, who took the stand?
(5) W[ere] all counsel[] ineffective for not arguing that trial
attorney Mr. Ciancaglini [was] ineffective for allowing the
Assistant District Attorney Caroline Keating, Esquire to
int[r]oduce into evidence the Medical Examiner[’s] medical
report who conducted the examination and who was not
their [sic] at the trial to testify in violation of [Brown’s]
Confrontation Clause of Federal Constitution Sixth
Amendment?
(6) W[ere] all counsel[] ineffective for not arguing trial
[c]ounsel Mr. Ciancaglini[’s] ineffectiveness for not adopting
a self-defense and/or duress/necessity defense?
(7) W[ere] all counsel[] ineffective for not arguing that trial
counsel, Mr. Ciancaglini[, was] ineffective for not hiring
[Brown’s] own [e]xpert [m]edical [e]xaminer [or a private
detective] to refute the Commonwealth’s [m]edical
records[]?
(8) Was Attorney Mosser’s Finley [l]etter proper when it did not
list all the issues nor the Medical Examiner’s Confrontation[]
Clause issue within his no-merit letter?
Appellant’s Brief, at 5.
In his first issue, Brown contends that all prior counsel were ineffective
for not arguing that direct appeal counsel was ineffective for failing to file a
petition for allowance of appeal (PAA) with the Pennsylvania Superior Court.
Brown claims he was prejudiced by counsel’s omissions and that this Court
should reinstate his right to appeal to the Supreme Court.
The Pennsylvania Supreme Court held that where counsel informs his
client that he will file a PAA, but fails to do so in a timely fashion, a cognizable
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claim of ineffectiveness exists. Commonwealth v. Liebel, 825 A.2d 630 (Pa.
2003). The Court further held that, in such an instance, a petitioner is not
required to prove that the Pennsylvania Supreme Court would have granted
the petition. See Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa. 2009)
(counsel is per se ineffective for failing to file requested PAA);
Commonwealth v. Reaves, 923 A.2d 1119, 1129 (Pa. 2007) (same).
Instantly, Brown does not allege that he either requested that counsel
file a PAA8 or that counsel told him that he would file a PAA and failed to do
so. Thus, he is not entitled to relief on this claim. Liebel, supra; Reed,
supra.
Brown next contends that prior counsel were ineffective for not arguing
that trial counsel was ineffective for not objecting to improper jury charges.
Specifically, Brown claims that the charge of attempted murder was defective
where the charge did not include the requisite element of specific intent to
commit the act, did not instruct that malice alone is not sufficient to sustain
the charge, and where three elements should have been specifically
enumerated.
We first note that “[a] trial court has wide discretion in phrasing jury
instructions. When reviewing an allegation of an incorrect jury instruction,
the appellate court must view the entire charge to determine whether the trial
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8 In fact, in PCRA counsel’s Finley “no-merit” letter, counsel avers that Brown
told him he chose not to pursue a PAA after conferring with prior counsel.
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court clearly and accurately presented the concepts of the legal issue to the
jury and should not reverse, as a result of the instruction, unless the trial court
committed an abuse of its discretion.” Commonwealth v. Ragan, 743 A.2d
390, 397-98 (Pa. 1999). As an appellate court, “[w]e will not examine a
phrase or sentence of an instruction in a vacuum. Rather, when we evaluate
a challenge to a charge, it must consider how each part fits together to convey
a complete legal principle.” Commonwealth v. Geathers, 847 A.2d 730,
733 (Pa. Super. 2004). Moreover, trial counsel will not be held to be
ineffective for failing to object to an erroneous jury instruction unless the
petitioner can establish prejudice. Commonwealth v. McGill, 832 A.2d 1014(Pa. 2003).
Instantly, a review of the notes of testimony from the jury charge
demonstrates that the trial judge explained that Brown was being charged
with attempted murder and that to find him guilty of that offense “you must
find the following three elements have been proven beyond a reasonable
doubt.” N.T. Jury Trial, 10/28/09, at 117. The court then enumerated each
of the three requisite elements of attempted murder: (1) commit certain act
(shooting); (2) specific intent to kill victim; and (3) act constituted a
substantial step toward commission of killing victim that defendant intended
to bring about. Id. (emphasis added).
Here, the trial judge properly listed the three required elements to prove
the crime of attempted murder, including that of specific intent to kill. See
Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994) (for defendant to be
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found guilty of attempted murder, Commonwealth must prove specific intent
to kill); see also Geathers, supra (court incorrectly instructed jury that
malice, rather than specific intent, was sufficient to prove attempted murder).9
Even though the court did not specifically state that malice alone is not
sufficient to prove attempted murder, the charge, as a whole, conveyed the
proper legal principle. Geathers, supra. Moreover, Brown has not proven
how this alleged omission caused him prejudice. McGill, supra. Thus, no
relief is due. Ragan, supra.
In his next issue on appeal, Brown asserts that prior counsel were
ineffective for failing to object to trial counsel’s failure to look into the criminal
histories of trial witnesses, Christopher Lancaster and Shakeya Green.
Moreover, Brown alleges that a Brady10 violation occurred where the district
attorney’s office did not turn over Lancaster’s and Green’s criminal histories,
which he claims are replete with “all things including assaults,” after it was
requested to do so.
In his brief, Brown generally asserts that this underlying legal issue has
arguable merit, that counsel lacked an objective, reasonable basis for his
actions, and that he was prejudiced on account of counsel’s actions. Under
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9 Although his argument is mostly incomprehensible, Brown seems to imply
that malice is a required element of attempted murder. This is simply not
true. See Geathers, supra.10 Brady v. Maryland, 373 U.S. 83 (1963) (setting forth prosecution’s
obligation to disclose impeachment evidence as well as exculpatory evidence,
as that evidence is evidence favorable to the accused).
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such circumstances we will not consider such claim. See Commonwealth v.
Begley, 780 A.2d 605 (Pa. 2001) (assertions of ineffectiveness in vacuum
cannot be ineffectiveness; to have court consider claims, party alleging
ineffectiveness must set forth offer to prove at appropriate hearing sufficient
facts upon which reviewing court can conclude that trial counsel may have, in
fact, been ineffective).11
Brown next claims that all prior counsel were ineffective for not arguing
that trial counsel was ineffective for not objecting to the assistant district
attorney’s introduction into evidence of the medical examiner’s report because
the examiner did not testify at trial, thus violating his rights under the
Confrontation Clause.
In all criminal prosecutions, the accused shall enjoy “the right . . . to be
confronted with the witnesses against him.” U.S. Const. Amend. VI. The
Confrontation Clause applies to witnesses against the accused, in other words
-- those who bear testimony. In order for a testimonial document to be
admissible, the witness who prepared it must testify at trial, unless he or she
is unavailable and the defendant had a prior opportunity for cross-
examination. Commonwealth v. Brown, 139 A.3d 208 (Pa. Super. 2016).
Instantly, the district attorney did not admit the medical examiner’s
report as there was none prepared because the victim’s injuries were not fatal.
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11 In any event, only crimen falsi crimes would have been admissible at trial
as Brown did not assert justification or self-defense as defenses. The crime
of assault is not considered a crimen falsi crime as it is not one that involves
dishonesty or false statement. See Pa.R.E. 609.
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However, the parties did stipulate at trial that some of the victim’s medical
records from Temple University Hospital, which detailed his injuries and
medical treatment, could be read to the jury. These hospital records,
however, were non-testimonial in nature. Brown, supra (document is
testimonial if its primary purpose is created or given under circumstances
which would lead objective witness reasonably to believe that document or
statement would be available for use at later trial). Under such circumstances
we do not find that counsel was ineffective or that Brown’s rights under the
Confrontation Clause were violated.
In his next issue, Brown contends that trial counsel was ineffective for
failing to present the defenses of self-defense or duress. Here, the
uncontradicted evidence at trial showed that Brown approached the unarmed
victim, shot him in the back multiple times at point-blank range as the victim
walked away, and continued to shoot the victim as he hid under his car,
causing the victim to sustain a total of eight gunshot wounds. 12 Under such
circumstances, we cannot fathom that the evidence would support a defense
of either duress or self-defense. Thus, counsel cannot be deemed ineffective.
Spotz, supra.
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12 Although Brown contends he is handicapped and has only one leg, he fails
to show how this fact changes the irrefutable evidence that he provoked the
incident and inflicted eight gunshot wounds upon his defenseless victim.
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In his next issue, Brown contends that all prior counsel were ineffective
for not raising trial counsel’s ineffectiveness in failing to hire an expert or
private investigator to refute the Commonwealth’s medical evidence.
Again, both parties reasonably stipulated to the evidence from the
victim’s medical records from Temple Hospital, detailing the victim’s injuries
and treatment. Brown does not articulate how the failure to hire an expert or
investigator to “refute” the records would have bolstered his defense and, in
its absence, prejudiced him. Thus, we find this claim fails too.
Finally, Brown asserts that PCRA counsel was ineffective for failing to
list all of Brown’s issues in his Finley no-merit letter. Specifically, he claims
that counsel omitted review of his Confrontation Clause/medical records issue.
This claim is belied by the record.
In his Finley letter, dated December 12, 2016, PCRA counsel stated:
Next, Defendant alleges that trial counsel was ineffective for
failing to object to the admission of the report of a medical
examiner who did not conduct the examination because the
admission of those records violated the Confrontation Clause,
pursuant to Crawford v Washington, 541 U.S. 36 (2004), and
its progeny. Because the victim in this case did not die, Defendant
is presumably referring to a stipulation as to the records regarding
the victim’s medical treatment rather than an autopsy report. The
rationale of Crawford is only applicable where the evidence in
question is testimonial. Commonwealth v. Allshouse, 36 A.3d
163, 175-76 (Pa. 2012)[.] Statements are testimonial if the
primary purpose of the statement is to establish past events for
the purpose of a future criminal prosecution. Michigan v.
Bryant, 131 S.Ct. 1143, 1154 (2011). Here, no report was
admitted at all. Rather, the stipulation at issue merely recounted
the victim’s injuries and the treatment provided and did not draw
any [conclusions] as to the cause of those injuries. That
information was compiled for the purpose of providing medical
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care, not in preparation for trial. Therefore, there was no
[C]onfrontation [C]lause issue and counsel had no reason to
object to the stipulation.
Finley No-Merit Letter by Todd M. Mosser, Esquire, 12/21/16, at 3. Because
PCRA counsel properly reviewed Brown’s Confrontation Clause claim and
concluded that it lacked merit, we find no error on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
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