Com. v. Brooks, B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BASEEM BROOKS, :
:
APPELLANT : No. 263 EDA 2016
:
Appeal from the PCRA Order January 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001996-2009
BEFORE: DUBOW, SOLANO, AND PLATT*, JJ.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 10, 2017
Appellant, Baseem Brooks, appeals from the January 7, 2016 Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, challenging the effectiveness of all
prior counsel. After careful review, we affirm.
On direct appeal, we summarized the facts underlying Appellant’s
convictions as follows:
Appellant’s convictions arose from an armed robbery that
occurred at about one o’clock in the morning on July 9, 2008, in
Philadelphia. At that time, [A]ppellant knocked on the door of
the home of Dorielsa Marrero.
Marrero was sleeping in her bedroom at the time, but her then
13-year-old son, Joshua Cruz, his uncle, Norverto Matos, and
their neighbor, Angel, were watching television. Cruz answered
*
Retired Senior Judge Assigned to the Superior Court.
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the door, and [A]ppellant asked him whether he had lost his cell
phone. Cruz responded that a friend of his, who lived up the
block, had lost a cell phone. Appellant then asked Cruz if his
father was home. Cruz informed [A]ppellant that he was not,
but apparently believing that [A]ppellant was a friend of his
father’s, Cruz went outside onto the porch. Appellant then called
to two unidentified men, pulled a handgun from his waistband,
pointed it at Cruz’s forehead, and forced his way into the house.
Once inside the house, [A]ppellant and the two unidentified men
told Cruz, Matos, and Angel to get on the floor, and proceeded to
tie up Matos and Angel with duct tape and cover them with a
blanket. Appellant then went upstairs, woke up Marrero, and
demanded money from her. After replying that she had no
money, [A]ppellant struck Marrero’s neck and forced her
downstairs where one of the unidentified men tied her with duct
tape and covered her with a blanket. Appellant again demanded
money; but after Cruz said that they had none, [A]ppellant
responded by saying “all right, you are going to die.”
One of the unidentified men then dragged Cruz upstairs, filled
the bathtub with water, and forced Cruz to get on his knees in
the bathtub. The man forced Cruz’s head underwater twice to
the point of Cruz nearly blacking out. Downstairs, the second
unidentified man beat Marrero [as she was] screaming and
praying for her son’s safety. Cruz and Marrero were then
brought downstairs, into the basement, where money was again
demanded. At this point, the burglar alarm suddenly went off.
Appellant and the two unidentified men fled. Cruz ran out the
back door and flagged down Maria Alvarez, a Philadelphia Police
Officer who was responding to the burglar alarm. Alvarez
entered the house, found it in disarray, and took descriptions of
[A]ppellant and the two unidentified men from Cruz and Marrero.
On August 1, 2008, Philadelphia Police Detective Larry Aitken
showed a photo array, which included a photo of [A]ppellant and
seven similar-looking men, to Cruz and Marrero separately.
Both Cruz and Marrero identified [A]ppellant as one of the men
involved in the burglary.
Commonwealth v. Brooks, No. 1513 EDA 2010, unpublished
memorandum at 1-3 (Pa. Super. filed December 2, 2011) (citations
omitted).
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Appellant was arrested and charged with Robbery, Attempted Murder,
Aggravated Assault, and more than thirty additional related charges.
Appellant elected to proceed by way of a jury trial, where he was
represented by Lloyd Long, Esquire. On September 17, 2009, the jury found
Appellant guilty of the following offenses: Robbery, Aggravated Assault,
Burglary, Criminal Conspiracy, Unlawful Restraint, False Imprisonment,
Possession of a Firearm by a Prohibited Person, Carrying a Firearm Without a
License, Carrying a Firearm on a Public Street in Philadelphia, and
Possessing an Instrument of Crime.1 On January 27, 2010, the trial court
imposed an aggregate sentence of 40 to 80 years of incarceration.
Appellant filed a timely Post-Sentence Motion, in which he averred,
inter alia, that the verdicts were against the weight of the evidence.
Appellant also requested that the trial court permit Attorney Long to
withdraw from the case and appoint new counsel on Appellant’s behalf. On
February 23, 2010, the trial court granted Appellant’s request for new
counsel, and on May 21, 2010, the trial court denied the remainder of
Appellant’s Post-Sentence Motion.
Appellant, now represented by John P. Cotter, Esquire, filed a timely
Notice of Appeal to this Court. Although Appellant included his challenge to
the weight of the evidence in his Pa.R.A.P. 1925(b) Statement, he did not
1
18 Pa.C.S.A. §§ 3701(a)(1)(i), 2702(a)(1), 3502(a), 903(a)(1), 2902(a),
2903(b), 6105(a), 6106(a)(1), 6108, and 907(a), respectively.
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raise the issue in his Brief to this Court. On December 2, 2011, this Court
affirmed Appellant’s Judgment of Sentence. Brooks, supra. Appellant filed
a pro se petition for allowance of appeal in the Supreme Court of
Pennsylvania, which that court denied on May 31, 2012.
On July 10, 2012, Appellant filed a timely pro se PCRA Petition. The
PCRA Court appointed Peter A. Levin, Esquire, as PCRA counsel. Attorney
Levin filed an amended PCRA Petition, averring that: (i) trial counsel was
ineffective for failing to advise Appellant of a plea offer; (ii) trial counsel was
ineffective for failing to “prepare [Appellant’s] case for trial, to present a
defense, to interview witnesses and to communicate with [Appellant]”; and
(iii) appellate counsel was ineffective for failing to pursue Appellant’s
challenge to the weight of the evidence. Amended PCRA Petition, filed
10/6/14, at 10.
The PCRA court held an evidentiary hearing, limited only to Appellant’s
claim that trial counsel failed to convey a plea offer.2 On January 7, 2016,
the PCRA court entered an Order dismissing Appellant’s PCRA Petition.
Appellant timely appealed, and all parties complied with Pa.R.A.P.
1925. On appeal, Appellant raises two issues.
1. Whether the [PCRA] court erred in not granting relief on
the PCRA [P]etition alleging counsel was ineffective [for failing to
advise Appellant of a plea offer].
2
As discussed infra, the PCRA court determined that there was no merit to
Appellant’s other claims.
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2. Whether the court erred in denying [] Appellant’s PCRA
[P]etition without an evidentiary hearing on the remaining issues
raised in the [A]mended PCRA [P]etition regarding trial counsel’s
ineffectiveness.
Appellant’s Brief at 9.
When reviewing the denial of PCRA Petition, “we examine whether the
PCRA court’s determination is supported by the record and free of legal
error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal
quotation marks and citation omitted). We grant great deference to the
findings of the PCRA court, and these findings will not be disturbed unless
they have no support in the certified record. Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super. 2003). “The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover,
“[w]here a PCRA court’s credibility determinations are supported by the
record, they are binding on the reviewing court.” Commonwealth v.
White, 734 A.2d 374, 381 (Pa. 1999).
All three of Appellant’s issues contend that trial and appellate counsel
provided ineffective assistance to Appellant. In analyzing claims of
ineffective assistance of counsel, we presume that counsel was effective
unless the PCRA petitioner proves otherwise. Commonwealth v. Williams,
732 A.2d 1167, 1177 (Pa. 1999). In order to succeed on a claim of
ineffective assistance of counsel, Appellant must demonstrate (1) that the
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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. Fulton, 830 A.2d 567, 572 (Pa.
2003). “[Where] the underlying claim lacks arguable merit, counsel cannot
be deemed ineffective for failing to raise it.” Commonwealth v. Koehler,
36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of
these elements, and his “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). With this
standard in mind, we address each of Appellant’s claims.
Plea Offer
In his first issue, Appellant avers that the PCRA Court erred in denying
Appellant’s claim that trial counsel was ineffective for failing to convey a plea
offer. The requirement that counsel be effective extends to the plea
bargaining process. Accordingly, trial counsel has an affirmative duty to
communicate all formal plea offers to his or her client. See Missouri v.
Frye, 566 U.S. 133 (2012). At a PCRA hearing, the petitioner has the
burden of establishing by a preponderance of the evidence that he is eligible
for relief on his claim that trial counsel failed to convey a plea offer. 42
Pa.C.S. § 9543(a). In the instant case, Appellant failed to do so.
At the PCRA hearing, Appellant and his trial counsel gave conflicting
statements regarding whether the plea offer was conveyed, and the PCRA
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court found that trial counsel’s testimony was credible and Appellant’s
testimony was not credible. The PCRA court summarized the evidence
adduced at Appellant’s PCRA hearing and its findings therefrom as follows:
[T]he Commonwealth called [Appellant’s] trial counsel, Lloyd
Long, Esquire, to testify. Mr. Long credibly testified at the
hearing that he had at least two conversations with [Appellant],
prior to trial, in which they discussed the Commonwealth offer of
15 to 30 years [of] incarceration. Mr. Long further testified that
[Appellant] offered two reasons for declining the plea offer: first,
as [Appellant] was on parole at the time of the alleged offenses,
[Appellant] was concerned that taking the offer would result in
significant back time; and second, both [Appellant] and trial
counsel believed that after the [trial court] denied the
Commonwealth’s request to admit evidence of [Appellant’s] prior
criminal conduct, [Appellant] had a triable case that was
premised largely on eyewitness testimony. Mr. Long also
credibly testified that he had a clear memory of discussing the
Commonwealth’s plea offer with [Appellant] prior to trial. Based
on Mr. Long’s testimony, the [PCRA court] found that Mr. Long
had communicated the Commonwealth offer to [Appellant], and
that [Appellant’s] contention to the contrary was not worthy of
belief.
Trial Court Opinion, filed 3/18/16, at 7.
On appeal, Appellant avers that the PCRA court “should have found
Appellant’s testimony worthy of belief and found that no plea offer was
conveyed to Appellant.” Appellant’s Brief at 18. It is not this Court’s role to
do so. As there is support for the PCRA court’s finding in the record, we are
bound by the PCRA court’s credibility determinations. White, supra at 381.
Appellant is, therefore, not entitled to relief on this claim.
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Claims Dismissed Without a Hearing
In his second issue, Appellant avers that the PCRA court erred in
dismissing his remaining two claims without an evidentiary hearing. A PCRA
petitioner is not automatically entitled to an evidentiary hearing.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). “[I]f the
PCRA court can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.” Id. (citation omitted). When
the PCRA court denies a petition without an evidentiary hearing, we
“examine each issue raised in the PCRA petition in light of the record
certified before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact in
controversy and in denying relief without conducting an evidentiary hearing.”
Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004)
(citation omitted).
Failure to Prepare for Trial and Present a Defense
Appellant avers that the PCRA court erred in denying Appellant an
evidentiary hearing to develop his claim that “trial counsel was ineffective for
failing to present a defense, to interview witnesses, and to communicate
with Appellant.” Appellant’s Brief at 20. In its Pa.R.A.P. 1925(a) Opinion,
the PCRA court found that Appellant’s Amended PCRA Petition failed to
adequately develop these claims. Trial Court Opinion, at 4-6. We agree.
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Boilerplate allegations and bald assertions cannot satisfy a petitioner’s
burden to prove that counsel was ineffective. Commonwealth v. Chmiel,
30 A.3d 1111, 1153, 1183 (Pa. 2011). To be entitled to relief, a PCRA
petitioner “must set forth and individually discuss substantively each prong”
of the test for ineffective assistance of counsel. Commonwealth v. Steele,
961 A.2d 786, 797 (Pa. 2008) (finding wavier where “Appellant only
addresse[d] the first prong, arguing that the underlying claim has arguable
merit, followed by a bald assertion of the lack of a reasonable basis and the
fact of prejudice.”). “[W]here [a petitioner] has failed to set forth all three
prongs of the ineffectiveness test and meaningfully discuss them, he is not
entitled to relief, and we are constrained to find such claims waived for lack
of development.” Id.In Appellant’s Amended PCRA Petition, Attorney Levin raised a dozen
allegations of ineffectiveness under the umbrella of a single claim that trial
counsel failed to adequately advocate on Appellant’s behalf. Attorney Levin
summarily laid out those allegations as follows:
Petitioner asserts that his counsel [(i)] failed to object that
Petitioner was never re arrested after the charges had been
withdrawn initially. [(ii)] He was never informed of the charges
against him by his new attorney and [(iii)] was never told by his
attorney why the charges had had [sic] been withdrawn.
Petitioner contends that his attorney [(iv)] failed to object to the
prosecutor misrepresenting facts in order to get a continuance of
the preliminary hearings.
Petitioner asserts that his counsel failed to investigate his case
and consult with him. He claims that his attorney [(v)] failed to
mount a defense, [(vi)] never investigated the crime scene,
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[(vii)] never took pictures of the crime scene, [(viii)] never tried
to locate witnesses near the crime scene who could have
exculpated the Petitioner, and [(ix)] never hired an investigator.
Petitioner asserts that his attorney [(x)] should have also
consulted with a DNA expert that would have shown fingerprints
of someone else at the crime scene.
Petitioner contends that his attorney was ineffective for [(xi)]
stipulating to Petitioner’s record and [(xii)] to allowing the
prosecutor to incorporate the evidence presented at trial at the
#6105 proceeding following the verdict.
Amended PCRA Petition, filed 10/6/14, at 13.
Despite the numerous allegations of ineffectiveness raised, the entire
argument section in which Attorney Levin purports to develop them consists
of a scant five paragraphs in which Attorney Levin summarily concludes that
Appellant is entitled to relief, and in which Attorney Levin seemingly raises
two additional clams. The entirety of his argument is as follows:
It is axiomatic that counsel’s function is to assist a defendant
and that he has a duty to advocate and keep defendant informed
of important developments concerning the prosecution of the
case.
Petitioner’s claim is of arguable merit if the omissions of trial
counsel constitute highly questionable legal judgment in
conducting the case.. [sic] See [Commonwealth v. Davis,
541 A.2d 315 (Pa. 1988)] “If counsel’s failure . . . was the result
of sloth or lack of awareness of the available alternatives, then
his assistance was ineffective.” Commonwealth v. Abney,
[350 A.2d 407, 410 (Pa. 1976)]. Moreover, the Sixth
Amendment states, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been
committed . . . and to be informed of the nature and cause of
the accusations; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense.”
U.S. CONST. amend. VI[.]
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Under the first prong of the [Commonwealth v. Paolello, 665
A.2d 439 (Pa. 1995)] test, trial counsel’s failure to conduct a
thorough pretrial investigation and to communicate is of
arguable merit as is counsel’s failure to [(xiii)] object to the
conspiracy charge and [(xiv)] the sentence merger.
Applying the second prong of the Paolello test, there is no
reasonable basis to justify trial counsel’s failure to perform as an
effective advocate.
With regard to the third prong of the Paolello test, as a result of
trial counsel’s ineffectiveness, Petitioner suffered great
prejudice. Although we cannot predict with certainty whether
the outcome would have been different, Petitioner was
prejudiced by the failure of counsel to be an effective advocate.
Amended PCRA Petition at 13-14.
In his Brief to this Court, Attorney Levin simply copied and pasted the
same anemic argument that he presented to the PCRA court. See
Appellant’s Brief at 20-22. These boilerplate averments fail to develop or
address any prong of the test for ineffective assistance of counsel. In sum
and substance, counsel presents a confusing jumble of undeveloped
complaints, followed by the barest conclusion that the three prongs are
satisfied. This lack of development renders the claims waived.
Failure to Litigate Weight Claim
Finally, Appellant avers that appellate counsel was ineffective for
failing to pursue a challenge to the weight and sufficiency of the evidence. 3
Appellant’s Brief at 22-23. We are again constrained to find that Appellant
3
Although framed as a weight claim, Appellant avers that “certain of the
charges were not made out.” Amended PCRA Petition at 15.
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waived this claim by failing to develop it in his PCRA Petition, Amended PCRA
Petition, or Brief to this Court.
In Appellant’s Amended PCRA Petition, the Appellant’s argument was
as follows:
Petitioner argues that his appeal attorney did not present the
Pennsylvania Superior Court with the issue of the verdict being
against the weight of the evidence and being contrary to law.
Trial counsel had preserved this issue by filing post sentence
motions that the verdict was against the weight of evidence
[sic]. Counsel argues in his closing to the Court why there was a
reasonable doubt regarding some of the charges and why certain
of the chargers were not made out. Yet appeal counsel did not
argue these points on appeal even though the issues were raised
in the 1925 (b) Statement.
These issues should have been appealed. Appellate counsel’s
failure to raise these issues on appeal is ineffective assistance of
counsel.
Trial counsel obviously thought these issues had merit which is
why he filed a post verdict motion. Secondly, there was no
“reasonable basis” for appellate counsel not to raise these
issues. Finally, the Petitioner suffered actual prejudice as a
result of appellate counsel’s failure to raise these issues. As a
result of appellate counsel’s failure, the issues could not be
argued on appeal.
Amended PCRA Petition at 15.
Once again, Appellant fell far short of his burden of developing this
claim for the PCRA court’s review. Appellant was convicted of ten separate
offenses. Appellant fails to identify which elements of which offenses he
believes the Commonwealth failed to prove. Although he avers that the
verdict was “against the weight of the evidence and . . . contrary to law[,]”
he fails to discuss any of the evidence presented or identify which laws the
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verdict(s) ran contrary to. Id. We, therefore, conclude that Appellant has
waived this claim for lack of development.
Having concluded that Appellant is not entitled to relief on his claims,
we affirm the PCRA court’s Order dismissing his PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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