Com. v. Brennan, G. ( 2021 )

J-S50036-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GLENN BRENNAN, :
:
Appellant : No. 1377 EDA 2020
Appeal from the PCRA Order Entered June 30, 2020
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003262-2015
BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED: JUNE 11, 2021
Appellant, Glenn Brennan, appeals from the order entered on June 30,
2020, dismissing his timely petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. Counsel has petitioned to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1
After review, we grant counsel’s petition to withdraw and affirm the order of
the PCRA court.
A prior panel of this Court provided the following background:
1
Counsel’s original certificates of service for the letter, petition to withdraw,
and Turner/Finley brief indicated service on the Commonwealth only.
Therefore, on May 19, 2021, this Court denied counsel’s petition to withdraw
and directed counsel to send a copy of the letter, petition to withdraw, and
Turner/Finley brief to Appellant with amended certificates demonstrating
proper service on Appellant and the Commonwealth. On May 24, 2021,
counsel complied.
*Retired Senior Judge assigned to the Superior Court.
J-S50036-20
The record reveals that Appellant committed and conspired
to commit multiple robberies of commercial establishments
between January 11, 2015, and February 28, 2015. In
connection with those crimes, on March 19, 2015, Appellant was
charged with eleven counts of robbery (threatening to commit
serious bodily injury),1 eleven counts of conspiracy to commit
robbery (threatening to commit serious bodily injury),2 eleven
counts of robbery (inflicting serious bodily injury, threatening to
inflict serious bodily injury, or intentionally putting one in fear of
immediate bodily injury),3 eleven counts of conspiracy to commit
robbery (inflicting serious bodily injury, threatening to inflict
serious bodily injury, or intentionally putting one in fear of
immediate bodily injury),4 eleven counts of theft by unlawful
taking,5 eleven counts of conspiracy to commit theft by unlawful
taking,6 eleven counts of receiving stolen property,7 eleven
counts of conspiracy to commit receiving stolen property,8 ten
counts of making terroristic threats,9 ten counts of possessing an
instrument of crime,10 ten counts of simple assault,11 and ten
counts of recklessly endangering another person.12
1 18 Pa.C.S. § 3701(a)(1)(ii).
2 18 Pa.C.S. § 903(a)(1).
3 18 Pa.C.S. § 3701(a)(1)(iv).
4 18 Pa.C.S. § 903(a)(1).
5 18 Pa.C.S. § 3921(a).
6 18 Pa.C.S. § 903(a)(1).
7 18 Pa.C.S. § 3925(a).
8 18 Pa.C.S. § 903(a)(1).
9 18 Pa.C.S. § 2706(a)(1).
10 18 Pa.C.S. § 907(a).
11 18 Pa.C.S. § 2701(a)(3).
12 18 Pa.C.S. § 2705.
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On July 27, 2015, Appellant entered guilty pleas to all
charges. On December 28, 2015, the trial court sentenced
Appellant to consecutive terms of eighteen to thirty-six months
of incarceration on the eleven counts of robbery (threatening to
commit serious bodily injury), and a concurrent term of twenty
years of probation for one count of conspiracy to commit robbery
(threatening to commit serious bodily injury). No further penalty
was imposed at the remaining counts. This resulted in an
aggregate sentence of sixteen and one-half to thirty-three years
of incarceration and a concurrent term of twenty years of
probation. On January 6, 2016, Appellant filed a timely post-
sentence motion for reconsideration of his sentence. Following a
hearing, the trial court denied Appellant’s post-sentence motion.
Commonwealth v. Brennan, 161 A.3d 373, 1490 EDA 2016 (Pa. Super.,
filed February 10, 2017) (unpublished memorandum at *1–3). Appellant
appealed to this Court, challenging the discretionary aspects of his sentence.
Upon review, we affirmed Appellant’s judgment of sentence. Appellant filed
a petition for allowance of appeal, which our Supreme Court denied on
August 8, 2017. Commonwealth v. Brennan, 170 A.3d 978, 145 MAL
2017 (Pa., filed August 8, 2017).
The PCRA court recounted the procedural history of this case, as
follows:
On March 26, 2018, [Appellant] filed a timely, pro se PCRA
petition. By order dated May 4, 2018, PCRA counsel was
appointed and was directed to file an amended petition setting
forth all claims [Appellant] sought to pursue. On May 14, 2018,
PCRA counsel filed a petition for an extension of time within
which to file his amended petition. By Order dated May 23,
2018, PCRA counsel’s request was granted.
On August 21, 2018, PCRA counsel filed a “no-merit” letter
pursuant to [Turner and Finley] and moved to withdraw as
PCRA counsel due to a lack of meritorious issues. In the
Turner/Finley letter, PCRA counsel asserted that his review of
the record and his discussions with [plea] counsel revealed no
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basis to question the voluntariness of [Appellant’s] plea. PCRA
counsel also advised … that [Appellant] had failed to respond to
counsel’s inquiries regarding [Appellant’s] discussions with [plea]
counsel and his understanding of the rights he was surrendering
by entering the plea. PCRA counsel concluded that without
[Appellant’s] cooperation and input, he could find no basis for
PCRA relief.
On November 20, 2018, PCRA counsel filed a motion
requesting additional time to examine [Appellant’s] claims based
on a communication he received from [Appellant] on November
19, 2018. By Order dated November 27, 2018, PCRA counsel
was granted until January 15, 2019[,] to file an amended PCRA
petition.
On January 7, 2019, PCRA counsel again filed for leave to
withdraw due to [Appellant’s] continued failure to communicate
with counsel. After reviewing [Appellant’s] pro se petition,
counsel’s “no merit” letter and the record in this case, th[e PCRA
c]ourt entered a Notice of Intent to Dismiss pursuant to
[Pennsylvania Rule of Criminal Procedure] 907 on April 24, 2019,
advising [Appellant] that th[e PCRA c]ourt intended to dismiss
[Appellant’s] request for PCRA relief without a hearing and
further advising him that he had twenty days from the entry of
the order to file a response to the Notice of Intent to Dismiss and
PCRA counsel’s Turner/Finley letter. [Appellant] did not file a
response.
By Order dated June 14, 2019, th[e PCRA c]ourt scheduled
a video status hearing for July 18, 2019[,] to confirm
[Appellant’s] receipt of the Turner/Finley letter and the Notice
of Intent to Dismiss and to inquire whether he intended to file a
response. At that hearing, PCRA counsel advised th[e PCRA
c]ourt that [Appellant] had experienced difficulty communicating
with counsel but that problem had been discussed and addressed
between he [sic] and his client. Based on their pre-hearing
discussions, PCRA counsel requested additional time to
investigate potential meritorious issues. PCRA counsel’s request
was granted and he was directed to submit a proposed
scheduling order by August 1, 2019. On July 22, 2019, PCRA
counsel submitted a proposed scheduling order. By Order dated
July 31, 2019, PCRA counsel was granted leave to file an
amended PCRA petition on or before September 30, 2019. On
September 5, 2019, PCRA counsel filed an amended PCRA
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petition[, raising a single claim of ineffective assistance of plea
counsel for convincing Appellant to “plead guilty by erroneously
telling him he had no chance to suppress statements obtained
from him by police while he was under the effect of intoxicating
substances, and incapable of giving voluntary, knowing and
intelligent consent to waive the presence and advice of counsel.”
Motion to Amend PCRA Petition, 9/5/19, at ¶ 2(a).] On
September 26, 2019, the Commonwealth filed its Answer. On
February 7, 2020, a hearing was held. [At the hearing, the
PCRA court heard testimony from plea counsel and Appellant
regarding counsel’s decision not to file a suppression motion.]
At the conclusion of the hearing, the parties were directed to file
briefs. By Order dated June 30, 2020, [Appellant’s] request for
PCRA relief was denied.
PCRA Court Opinion, 7/27/20, at 7–8 (record citations omitted).
This timely-filed notice of appeal followed. The PCRA court directed
Appellant to file a concise statement of matters complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). In lieu of
filing a concise statement, counsel filed a statement of intent to file an
Anders/Santiago2 brief pursuant to Rule 1925(c)(4). The PCRA court filed
a Rule 1925(a) opinion on July 27, 2020. As noted, counsel has filed a
Turney/Finley brief in this Court on Appellant’s behalf, and counsel’s
petition to withdraw remains outstanding.
Prior to addressing the merits of any issues on appeal, we must first
decide whether counsel has fulfilled the procedural requirements for
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). Rule 1925(c)(4) applies to an
Anders/Santiago brief, which is applicable on direct appeal only. Where
counsel seeks to withdraw on appeal from the denial of PCRA relief,
a Turner/Finley “no-merit letter” or brief is the appropriate filing.
Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).
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withdrawing his representation. Commonwealth v. Daniels, 947 A.2d
795, 797 (Pa. Super. 2008). This Court has listed conditions counsel must
satisfy when seeking to withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation must
proceed ... under Turner, supra and Finley, supra and ...
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
* * *
[W]here counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the [court in
which the application was filed, meaning the trial court or the
appellate court] must then conduct its own review of the merits
of the case. If the court agrees with counsel that the claims are
without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).
In the application filed with this Court, counsel explained he reviewed
the case, spoke with Appellant and plea counsel, reviewed the PCRA court’s
decision dismissing Appellant’s PCRA petition, and concluded there were no
issues of merit. Turner/Finley Brief at unnumbered 1. Counsel listed the
issue Appellant sought to raise and explained why the appeal is without
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merit. Id. at unnumbered 3. In addition, counsel certified that he served
upon Appellant, inter alia, a copy of the petition to withdraw, the
Turner/Finley brief, and a letter addressed to Appellant accompanying
those documents. Certification of Service, 5/24/21. The letter sent to
Appellant advised Appellant of his immediate right to proceed pro se or
through privately retained counsel. We conclude that counsel has
substantially complied with the requirements necessary to withdraw as
counsel. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.
Super. 2003) (holding that substantial compliance with the requirements to
withdraw as counsel will satisfy the Turner/Finley criteria). Thus, we will
permit counsel to withdraw if, after our independent review, we conclude
that the claims relevant to this appeal lack merit.
In the Turner/Finley brief, counsel set forth the sole issue Appellant
wanted to raise on appeal: whether plea counsel was ineffective for failing
to file a motion to suppress Appellant’s statement to police based on the
argument that Appellant was unable to waive his Miranda3 rights because
he was going through heroin withdrawal. See Turner/Finley Brief at
unnumbered 2–3.
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.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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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). A PCRA court’s credibility findings are to be accorded great
deference. Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011)
(citation omitted). “Where the record supports the PCRA court’s credibility
determinations, such determinations are binding on a reviewing court.” Id.(citation omitted).
In order to plead and prove ineffective assistance of counsel, a
petitioner must establish: (1) that the underlying issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act. Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of
ineffectiveness will be denied if the petitioner’s evidence fails to meet any
one of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010). Counsel is presumed to have rendered effective assistance of
counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).
Moreover, we have explained 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). Further, “[w]e need not analyze the
prongs of an ineffectiveness claim in any particular order. Rather, we may
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discuss first any prong that an appellant cannot satisfy under the prevailing
law and the applicable facts and circumstances of the case.”
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)
(citing Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).
Ineffective-assistance-of-counsel claims in connection with the entry of
a guilty plea serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea. Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). “Where the defendant
enters his plea on the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Id. (citation and quotation marks
omitted).
The PCRA court addressed Appellant’s claim as follows:
First, [Appellant] did not establish that he lacked sufficient
cognitive awareness to understand the Miranda warnings and
voluntarily waive his rights as a result of drug use or because he
was experiencing withdrawal symptoms. As to his drug use,
[Appellant] acknowledged [at the PCRA hearing] that his drug
use did not interfere with his ability to function. He testified that
his ability to comprehend was not impacted until he began to
experience withdraw[al] symptoms following his arrest. As to
the effects of drug withdraw[al], although [Appellant] may have
been experiencing physical symptoms of distress from
withdrawal, he admitted under oath that he understood the
Miranda warnings. He initialed and signed a written Miranda
waiver form and signed and dated the incident reports relating to
the robberies to acknowledge his verbal admissions of guilt to
police. [Appellant’s] cognitive awareness was also demonstrated
by the statement he gave to police. [Appellant] was able to
clearly communicate with the officers both before and after the
administration of Miranda warnings, recalling and relating in
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great detail the facts and circumstances involved in each of the
robberies. His attempt to implicate his co-defendant during the
interview “further evidenced not a coerced mind overborne with
pain and intimidation but, instead, a freely calculating mind
exploring ways to secure a more favorable result for himself.”
Commonwealth [v.] Johnson, … 107 A.3d 52, 94 (Pa. 2014).
The statements allegedly made by police regarding delay in
treatment also cannot serve as a basis for relief. Assuming
arguendo that those statements were made, [Appellant’s] claim
of ineffective assistance of counsel is based on an alleged
involuntary waiver of his Miranda rights. At the PCRA hearing,
[Appellant] testified that the statements were not made until
after he waived his Miranda rights and was in the process of
confessing. The statements therefore could not have had any
impact on [Appellant’s] decision to waive his Miranda rights.
[Appellant] also failed to prove that his guilty plea was
primarily motivated by his statement to police since he admitted
on cross examination that he intended to enter a guilty plea
“regardless” of his statement to police. This [c]ourt did not find
[Appellant’s] testimony to the contrary to be credible. Both
[Appellant] and [plea] counsel testified that [Appellant] informed
[plea] counsel that he intended to enter a guilty plea from the
outset of [plea] counsel’s representation of [Appellant]. The
evidence against [Appellant], separate and apart from his
statement, was overwhelming. All eleven robberies were
connected by virtue of their timing, location, eyewitness
descriptions of the perpetrator, eyewitness descriptions of the
weapon used and the common plan, scheme and design of the
crimes themselves, all of which w[ere] confirmed by video
surveillance footage. [Appellant] was arrested after police
observed him “casing” another convenience store in a vehicle
that had been placed at the scene of at least one other robbery
through video surveillance. When he was subsequently stopped
by police after his unsuccessful attempts to elude them, police
noted that he matched the physical description of the
perpetrator of the robberies and was wearing clothing matching
the clothing worn by the perpetrator of the robberies. A weapon
matching that[,] which was brandished during the robberies[,]
was found on his person. [Appellant’s] cellular telephone was
later searched, revealing two photographs of interest—a
photograph taken on February 5, 2015[,] of a wad of cash and a
photograph taken on February 13, 2015[,] of a large amount of
money and a gun. That search also revealed a text message
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wherein [Appellant] made reference to committing a robbery.
Finally, following his incarceration, [but prior to pleading guilty,
Appellant] told another inmate about “a few robberies” that he
committed. Based on the testimony and all of the surrounding
circumstances, th[e PCRA c]ourt concluded that [Appellant] was
motivated not by [plea] counsel’s opinions regarding suppression
but rather by his recognition that it was in his best interest to
enter a guilty plea to mitigate his sentence. [Appellant], in fact,
took full advantage of this strategy at sentencing by advising
th[e c]ourt that he took “full responsibility” for his crimes “from
the very beginning” and received a sentence in the mitigated
range of the sentencing guidelines.
Finally, [Appellant] failed to establish that [plea] counsel’s
advice was incompetent. As explained above, [plea] counsel
correctly judged that [Appellant’s] potential suppression issue
lacked merit. He also correctly judged that, due to the
overwhelming evidence against [Appellant], successfully
suppressing [Appellant’s] statement to police would not offer any
greater potential for success at trial. [Plea] counsel’s opinion
regarding the merits of suppression based on Miranda and his
decision to focus on mitigating the offenses by showing
[Appellant’s] cooperation and acceptance of responsibility in
conjunction with other mitigation evidence were supported by
the facts of the case and the applicable law and were clearly
designed to and, in fact, did effectuate his client’s interests.
Simply stated, [plea] counsel provided effective assistance in
this case.
PCRA Court Opinion, 7/27/20, at 12–15 (footnote and some citations
omitted).
We agree with the PCRA court’s conclusion. The record supports the
PCRA court’s credibility determinations, and we agree with counsel that
Appellant’s claim lacks merit. Following our independent review of the
record, we conclude there are no meritorious issues upon which Appellant
may obtain relief. Having determined that the June 30, 2020 order must be
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affirmed, we grant counsel’s petition to withdraw pursuant to
Turner/Finley.
Petition to withdraw as counsel granted. Order affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/21
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