Com. v. Burke, B. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRAHEEM BURKE,
Appellant No. 1857 EDA 2015
Appeal from the PCRA Order Entered May 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001048-2007
BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 23, 2016
Appellant, Braheem Burke, appeals pro se from the post conviction
court’s May 29, 2015 order denying his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant avers
that his direct appeal counsel was ineffective for raising only one claim,
which this Court found waived. We affirm.
The facts of Appellant’s underlying convictions can be briefly
summarized as follows. At around 12:35 p.m. on June 7, 2006, several
Philadelphia Police Officers responded to gunshots and found one victim,
Charles Carter, shot in the forehead, and a second victim, Niall Saracini,
shot multiple times in the neck, back, and arm. Both victims died from their
injuries. The ensuing homicide investigation revealed that Appellant and
Yusef Washington had fired shots that killed Carter and Saracini during an
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altercation between two groups of men – one group was comprised of
Carter, Saracini, Keith McClain, and Eric Carter; the other group was
comprised of Appellant, Washington, and Rahman Jenkins.
On September 24, 2008, Appellant was convicted of two counts
of Third[-]Degree Murder and one count of Possession of an
Instrument of Crime (PIC) at a jury trial before the Court. On
December 19, 2008, Appellant was sentenced to an aggregate
sentence of 30-60 years[’] imprisonment. No post[-]sentence
motions were filed. The Superior Court affirmed the judgment of
sentence on December 20, 2010 and allocatur was denied on
July 26, 2011. [Commonwealth v. Burke, 23 A.3d 587 (Pa.
Super. 2010) (unpublished memorandum), appeal denied, 25
A.3d 327 (Pa. 2011).]
Appellant filed a timely[,] pro se PCRA petition on
September 4, 2012. PCRA counsel was appointed on July 12,
2013. On March 15, 2014, counsel filed an amended petition
alleging that direct appeal counsel waived Appellant’s appellate
rights because the one issue raised was deemed waived.
Subsequently, on October 27, 2014, the Commonwealth filed a
motion to dismiss. The Court filed a dismissal notice on March
30, 2015 and Appellant filed a pro se response to [the] dismissal
notice on April 15, 2015. Ultimately, after a careful review of
the filings and applicable case law, the Court dismissed the
petition on May 29, 2015.
PCRA Court Opinion (PCO), 8/17/15, at 1-2 (footnotes omitted).
Appellant’s counsel petitioned to withdraw, which the court granted on
the same day it denied Appellant’s petition, May 29, 2015.1 Appellant then
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1
Counsel’s motion to withdraw was not docketed nor included in the
certified record. Appellant does not raise any issue concerning his PCRA
counsel’s motion to withdraw, or the court’s granting thereof, and we are not
permitted to raise such issues sua sponte. See Commonwealth v. Pitts,
981 A.2d 875, 880 (Pa. 2009).
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filed a timely, pro se notice of appeal, and also timely complied with the
PCRA court’s order to file a Pa.R.A.P. 1925(b) statement. 2 Therein,
Appellant raised two issues:
a) [Appellate counsel] … rendered ineffective assistance of
counsel on direct appeal to the Superior Court when [counsel]
raised only one issue even though other issues had been listed in
the Statement of Matters Complained Of Pursuant to Rule
1925(b).
b) [Appellate counsel] … rendered ineffective assistance of
counsel as [the] only issue raised on appeal was deemed waived
by the Superior Court. In that the Superior Court considered
that one issue to be waived, [Appellant], in essence, had no
appeal.
Rule 1925(b) Statement, 7/22/15, at 1 (unnumbered).
Now, in Appellant’s pro se brief, he presents only one issue, stating:
“The PCRA court committed error when it dismissed [Appellant’s] PCRA
petition without an evidentiary hearing, due to ineffective assistance of
counsel on direct appeal.” Appellant’s Brief at 3 (unnecessary capitalization
omitted). As will be discussed, infra, the argument portion of Appellant’s
brief relates only to the second issue presented in his Rule 1925(b)
statement. He fails to develop any meaningful discussion pertaining to the
first issue raised therein. Accordingly, that claim is waived for our review.
____________________________________________
2
For some reason, Appellant’s PCRA counsel filed a Rule 1925(b) statement
on Appellant’s behalf, despite having been granted leave to withdraw from
representing Appellant several months earlier. Counsel did not enter his
appearance before this Court and, again, Appellant does not challenge the
court’s order allowing counsel to withdraw, or raise any issue with his
proceeding pro se on appeal.
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See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)
(citations omitted) (“The [appellant’s] brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities. … [W]hen defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.”).
Before addressing Appellant’s preserved claim, we note that, “[t]his
Court’s standard of review from the grant or denial of post-conviction relief
is limited to examining whether the lower court’s determination is supported
by the evidence of record and whether it is free of legal error.”
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing
Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where,
as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
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underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Appellant contends that his direct appeal counsel was ineffective for
raising a claim which this Court deemed waived. By way of background, the
issue raised by appellate counsel challenged an evidentiary ruling by the trial
court, made in the following context:
On cross-examination [of Keith McClain at trial], [A]ppellant
sought to ask [] McClain about a tattoo with the letters “RNR.”2
Appellant argued that McClain and decedent Saracini had similar
tattoos on their hands, indicating that they were members of the
same gang. The trial court sustained the Commonwealth’s
objection. At sidebar, [A]ppellant asserted that the similar
tattoos could have signified a gang tattoo and, thus, a
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conspiracy between the men to return and confront [A]ppellant.
(Notes of testimony, 9/17/08 at 66-67.)
2
Defense counsel stated that “RNR” referred to “Real
Niggaz [sic] Riding,” referred to in a rap song. (Notes of
testimony, 9/17/08 at 65-66.)
Commonwealth v. Burke, No. 65 EDA 2009, unpublished memorandum at
6 (Pa. Super. filed 12/20/10).
On direct appeal, appellate counsel challenged the trial court’s
preclusion of McClain’s testimony about the tattoos by arguing that the
court’s decision “precluded [Appellant] from making out a self-defense
claim.” Id. We deemed this argument waived, stating:
Appellant did not make an argument at sidebar that his
line of questioning regarding the tattoo was to develop a theory
of complete self-defense. Rather, at sidebar, [A]ppellant stated
[that] he wanted to use the tattoo evidence to suggest that the
victims conspired to return to the scene and engage in violence.
Thus, [A]ppellant’s newly formulated basis for admission is
waived as it was not specifically raised before the trial court.
See Commonwealth v. Newman, 555 A.2d 151, 156 (Pa.
Super. 1986), appeal denied, … 655 A.2d 512 ([Pa.] 1995)
(“[T]he party specifying the purpose for which the testimony is
admissible cannot argue on appeal that the evidence was
admissible for a purpose other than that offered at trial.”).
Appellant has waived any grounds, other than those raised at
trial, for the admission of such evidence. Id.; Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).
Id. at 6-7.
Herein, Appellant contends that direct appeal counsel was ineffective
for framing his sole issue on appeal in such a way as to render the claim
waived. Appellant’s argument is meritless for two reasons. First, appellate
counsel attempted to argue that the trial court erred by precluding McClain’s
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testimony about the “RNR” tattoo because that evidence was vital to
developing Appellant’s theory of self-defense. The fact that this Court
concluded that that claim was waived implicates trial counsel’s
ineffectiveness, not appellate counsel’s.
Second, Appellant has failed to demonstrate that he was prejudiced by
appellate counsel’s failure to raise the specific claim that was preserved
below, i.e., that McClain’s testimony about his tattoo would have
demonstrated “a conspiracy between [McClain and Saracini] to return and
confront [A]ppellant.” Appellant’s Brief at 14. After this Court deemed
Appellant’s issue waived, we noted that:
At any rate, … it was admitted [at trial] that [McClain and
Saracini] were returning to the scene to fight [A]ppellant and his
cohorts for ‘disrespecting’ McClain. Thus, it was not necessary
for [A]ppellant to introduce [the tattoo] evidence to establish
that McClain, Saracini, and the Carter brothers were acting in
concert.
Burke, No. 65 EDA 2009, unpublished memorandum at 7. Thus, it is
apparent that even had appellate counsel challenged the trial court’s ruling
on the basis preserved below, this Court would have deemed that claim
meritless.
Accordingly, Appellant has failed to demonstrate that appellate counsel
acted ineffectively. It was trial counsel that failed to preserve the argument
that McClain’s testimony was vital to proving that Appellant acted in self-
defense. Furthermore, this Court noted on direct appeal that the testimony
about McClain’s tattoo was not necessary to establish a conspiracy between
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McClain and Saracini to attack Appellant, thus indicating that we would have
deemed this claim meritless had appellate counsel raised it on appeal.
Consequently, the PCRA court did not err in denying Appellant’s petition for
post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
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