Com. v. Brown, D.

J-S25020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIMITRIUS BROWN :
:
Appellant : No. 1973 EDA 2020
Appeal from the PCRA Order Entered October 1, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012767-2015
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 19, 2021
Dimitrius Brown appeals from the order denying his Post Conviction
Relief Act petition. See 42 Pa.C.S.A. §§ 9541-9546. Brown claims the PCRA
court erred in denying his motion for a continuance of the evidentiary hearing
until a time when he could attend in person. We affirm.
In July 2017, a jury convicted Brown of Third-Degree Murder, Possession
of a Firearm by a Prohibited Person, Firearms Not to Be Carried Without a
License, and Carrying a Firearm on a Public Street in Philadelphia.1 In
September 2017, the trial court sentenced Brown to an aggregate sentence
of 22.5 to 45 years’ imprisonment. Brown appealed, and we affirmed the
judgment of sentence in April 2019. Brown filed a timely pro se PCRA petition.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(c), 6105(c)(8), 6106(a)(1), and 6108, respectively.
J-S25020-21
Brown retained counsel, who filed an amended petition arguing that Brown’s
trial counsel was ineffective for raising an alibi defense, rather than a claim of
self-defense.2
The court scheduled an evidentiary hearing for October 1, 2020. Brown
requested a continuance until he could attend the hearing in person. The court
denied the motion, noting that due to COVID-19 pandemic restrictions,
prisoners were not being transported from the state prison for PCRA hearings,
and there was no known end date to that policy:
When this virus hit, our Pennsylvania Supreme Court issued
orders as to how the courts should operate, and one of those
orders included a suspension of the state rules governing
the ban, basically -- historic ban on audiovisual hearings.
Since this time -- and then they left it in the discretion, after
so many months, of the local jurisdictions’ president judges
to continue and to have hearings in the best way possible
for everyone.
So, in an ideal world, I would have granted that continuance
and would have brought you down. The problem we have is
it’s March, April, May, June, July, August, September, and
now October, and I have not been able to get any
information that the transfer and the transportation of state
prisoners will begin again at any time in the near future.
So, Mr. Mosser knows, I explored the possibility of having
our own sheriffs go up and get Mr. Brown. The problem with
that is, they agreed they could do that, but Mr. Brown --
Huntingdon, or any other state -- I didn’t do it specifically
____________________________________________
2 After Brown filed the pro se petition, trial counsel filed a PCRA petition
seeking reinstatement of Brown’s right to file a petition for allowance of appeal
to the Pennsylvania Supreme Court. Brown subsequently retained counsel,
who filed an amended petition, which did not include this claim.
-2-
J-S25020-21
for Mr. Brown, but a general question -- the state won’t take
him back for 14 days.
Okay, so, it really wouldn’t work because then, what would
happen is, you would go into quarantine in the [] county
because the state wouldn’t take you back for about 14 days,
at a minimum.
N.T., 10/1/20, at 6-8.
Counsel again placed his objection on the record, noting federal cases
that discuss that a defendant has a right to be physically present in the
courtroom. Id. at 9 (citing Kentucky v. Stincer, 482 U.S. 730 (1987), and
Drew v. Wetzel, C.A. No. 15-2725, 2017 WL 1326141 (E.D. Pa. 2017)). The
Commonwealth also objected, noting “[it was] concerned about potential
appellate issues if he’s not brought down.” Id. at 9-10. The trial court
confirmed that the cases did not discuss state proceedings being conducted
during public health crises and counsel stated they did not. Id. at 10. The
court concluded Brown “is entitled to move this petition along.” Id.3
Before beginning the hearing, the court ensured that Brown had an
opportunity to speak with his PCRA counsel and that Brown was prepared for
the hearing. Id. at 9. Further, before Brown testified, he again spoke with
counsel in private. Id. at 87-89.
At the hearing, Brown attended and testified via video, trial counsel
testified via video, and Brown’s uncle Thomas Wheeler testified in person.
____________________________________________
3The day of the hearing, Brown filed a motion for leave to file an amended
PCRA petition. The second amended petition contained a witness statement.
The PCRA court granted the motion to amend the petition and permitted the
witness to testify.
-3-
J-S25020-21
Following the hearing, the court denied the PCRA petition. Counsel filed a
motion to withdraw. The court granted the motion and appointed new counsel,
who filed a timely notice of appeal.
Brown filed an application for remand to file a supplemental statement
of errors. This Court granted the application, and, following remand, counsel
filed a supplemental statement claiming the court “erred and abused its
discretion when [it] denied [] Brown’s request to continue the evidentiary
hearing,” stating “Brown requested the continuance because he was not
physically present due to restrictions associated with the pandemic.”
Supplemental Statement of Matters Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), filed Feb. 9, 2021. The PCRA court issued a supplemental
Rule 1925(a) opinion addressing the issue.
Brown raises the following issue on appeal:
Did the PCRA court err and abuse its discretion when the
court denied Mr. Brown’s request for a continuance so he
could be physically present for the evidentiary hearing?
Brown’s Br. at 3.
Brown argues that he had a constitutional right to be physically present
for the PCRA evidentiary hearing and the court erred when it denied his motion
to continue and proceeded with the hearing where neither he nor the witness
was physically in the courtroom. He maintains that going forward with the
hearing did not advance a compelling public policy or state interest, and that
the pandemic did not constitute such an interest. Id. at 15.
-4-
J-S25020-21
Brown argues that under the Sixth Amendment, he has a right to
confront witnesses, and that, similar to a preliminary or suppression hearing,
this right extends to the PCRA evidentiary hearing. He notes that we have
stated that confrontation through a video monitor is not the same as physical
face-to-face confrontation. Id. at 11 (citing Commonwealth v. Atkinson,
987 A.2d 743, 751 (Pa.Super. 2009)). He argues the evidentiary hearing is a
critical stage of the proceedings “because it was a point at which his
‘substantive rights [would] be preserved or lost.’” Id. at 14 (quoting
Commonwealth v. Holzer, 389 A.2d 101, 107 (Pa. 1978)) (alteration in
original). He notes that something less than face-to-face confrontation
satisfies the right to confront witnesses where such procedures further an
important public policy, and the reliability of the testimony is assured. Brown
claims that the court wanted to expedite the proceedings, but that was not a
sound reason to deny a constitutional right.
He further contends that the error was not harmless. He notes that both
he and a witness appeared via video and it was not clear whether they could
see each other. According to Brown, the use of technology constrained his
ability to confer with PCRA counsel. He maintains that if he was present he
could have spoken with counsel outside of the prosecutors’ earshot and
conferred with counsel to strategize about trial counsel’s testimony during
direct and cross-examination.
“The decision to grant a continuance is within the sound discretion of
the [PCRA] court, and we will reverse only if the court has abused its
-5-
J-S25020-21
discretion.” Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011) (citing
Commonwealth v. Wright, 961 A.2d 119, 133 (Pa. 2008)).
To the extent Brown’s claim is based on the right to confront witnesses
under the Sixth Amendment of the United States Constitution and Article 1,
Section 9 of the Pennsylvania Constitution, this claim is waived because he
failed to raise it before the PCRA court.4 Both at the hearing and in his
supplemental Rule 1925(b) statement, he raised a claim that the court’s denial
of his continuance motion violated his constitutional right to be present in the
courtroom. See N.T., 10/1/20, at 9; Supplemental Statement of Matters
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), filed Feb. 9, 2021.
We will review Brown’s arguments regarding his ability to confront witnesses
only to the extent that his absence from the courtroom impacted his ability to
confront witness. See Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)
(noting “[c]onfusion will result . . . if the privilege of presence be identified
with the privilege of confrontation, which is limited to the stages of the trial
when there are witnesses to be questioned”).
A “defendant is guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745 (finding
no violation where defendant was excluded from competency hearing);
Snyder, 291 U.S. at 122 (finding jury view conducted in defendant’s absence
____________________________________________
4 See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal”).
-6-
J-S25020-21
did not require reversal); Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa.
2014). “The constitutional right to presence is rooted to a large extent in the
Confrontation Clause of the Sixth Amendment, . . . but [the United States
Supreme Court has] recognized that this right is protected by the Due Process
Clause in some situations where the defendant is not actually confronting
witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522,
526 (1985). Therefore, “even in situations where the defendant is not . . .
confronting witnesses or evidence against him, he has a due process right to
be present in his own person whenever his presence has a relation, reasonably
substantial, to the ful[l]ness of his opportunity to defend against the charge.”
Stincer, 482 U.S. at 745 (citation and internal quotation marks omitted).5
To obtain relief where a defendant is improperly excluded from a
proceeding, there must be “some prejudice resulting from the court’s action.”
Commonwealth v. Ressler, 798 A.2d 221, 223 (Pa.Super. 2002); see also
____________________________________________
5 Pennsylvania Rule of Criminal Procedure 119 governs the use of two-way
simultaneous audio-video communication in criminal proceedings.
Pa.R.Crim.P. 119. The comment to the rule clarifies that a defendant must
consent to the use of two-way simultaneous audio-video communication at a
PCRA hearing. Pa.R.Crim.P. 119, comment.
At the time of the hearing, Philadelphia was under a declaration of a district-
wide judicial emergency due to the COVID-19 pandemic. The President Judge
of the First Judicial District declared the emergency and suspended the
“[s]tatewide rules that restrict, directly or indirectly, the use of advance
communication technologies.” In re Continuation of Judicial Emergency
in First Judicial Dist., Slip Op. (Com. Pl. Ct. June 1, 2020); see also In re
Gen. Statewide Judicial Emergency, 234 A.3d 408 (Pa. 2020) (per curiam)
(authorizing president judges to suspend “statewide rules that restrict, directly
or indirectly, the use of advanced communication technologies”).
-7-
J-S25020-21
Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988) (concluding harmless error
doctrine applied to violation of face-to-face confrontation claims); Thomas v.
Goldsmith, 979 F.2d 746, 748 (9th Cir. 1992) (applying harmless error
review to claim defendant was denied right to be present). Courts have found
harmless error for constitutional violations where, among other things, “the
error did not prejudice the defendant or the prejudice was de minimis.”
Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008) (citation omitted).
Here, the trial court concluded Brown’s due process rights were not
violated and he did not suffer prejudice:
In response to the COVID-19 pandemic, the Supreme Court
of Pennsylvania suspended normal operation of the Courts
and issued a statewide judicial emergency ordering the
closure of court facilities in Pennsylvania. Beginning May 4,
2020, the Supreme Court reopened court facilities for critical
functions. To that end, the Supreme Court encouraged the
President Judges of the Courts of Common Pleas to conduct
court proceedings using advanced communication
technologies, to the extent that constitutional requirements
can be satisfied. See Emergency Order of Statewide Judicial
Administration Applicable from May 1, 2020, Through June
1, 2020 at *4 n.3 (Nos. 531 & 532 Judicial Administration
Docket, April 28, 2020). In its following May 27, 2020
Administrative Order ceasing the statewide judicial
emergency, the Supreme Court specifically empowered
President Judges to suspend statewide rules that restrict,
directly or indirectly, the use of advanced communication
technologies. See Cessation of Statewide Judicial
Emergency After June 1, 2020 at *2 (Nos. 531 & 532 Judicial
Administration Docket, May 27, 2020).
On July 6, 2020, the President Judge of the First Judicial
District of Pennsylvania issued an Administrative Order
announcing that the Juanita Kidd Stout Center for Criminal
Justice was to remain generally closed to the public, and
that witnesses or defendants would only be permitted into
-8-
J-S25020-21
the facility if specifically authorized by the Court. See
President Judge Administrative Order No. 47 of 2020.
On August 13, 2020, the instant matter was scheduled for
an evidentiary hearing, to be held on October 1, 2020. Since
the Court’s closure on March 16, 2020 to the present date
of February 25, 2021, the Pennsylvania Department of
Corrections has not transferred inmates between state
correctional facilities for purpose of later transport into local
custody for post-conviction evidentiary hearings. Nor has
the Philadelphia Department of Prisons accepted the
transfer of inmates for this purpose.1 In response to these
circumstances, this Court arranged for [Brown] to appear
via advanced video communication technology.
1This Court further explored sending officials from the
Philadelphia Sheriff’s Office to transport the inmate
directly from SCI Huntingdon to local custody, but
such a plan was deemed untenable due to continued
outbreaks at state and local institutions.
[Brown] fails to establish that his due process rights were
violated when he attended the evidentiary hearing via video
technology. Due to the ongoing COVID-19 pandemic, the
Supreme Court of Pennsylvania loosened restrictions on the
use of such technology to ensure the safety of not only this
Court and counsel, but [Brown’s] own safety as well. At the
outset of the hearing, this Court explained that the current
state policy prevented inmate transport to local custody and
that such transportation had been suspended since March
2020. N.T. 10/1/2020 at 6-7. This Court further cautioned
that it had not received any information regarding when
transportation would recommence and that if the
Philadelphia Sheriff's Department were to transport
[Brown], he would be subject to a fourteen-day quarantine.
Id. at 7-8. Ultimately, this Court determined that [Brown]
was entitled to continue with his PCRA evidentiary hearing,
to the speediest extent that the circumstances allowed. Id.
at 10.
This Court gave [Brown] an opportunity to privately confer
with counsel at the outset, during, and at the conclusion of
proceedings. Through the video link, [Brown] was able to
communicate with the Court by answering its questions as
if he were present in the courtroom. Id. at 9. When asked,
-9-
J-S25020-21
[Brown] confirmed that he was prepared to proceed with the
hearing. Id. During the hearing, [Brown] was able to
observe witness testimony from trial counsel Benjamin
Cooper Esq. and family member Thomas Wheeler. [Brown]
himself testified and explained to the Court that he wanted
to pursue a self-defense strategy to secure a not guilty or
voluntary manslaughter verdict. Id. at 89-93. During his
testimony, [Brown] confirmed that he heard Wheeler’s
testimony, and at no point indicated that he was unable to
hear or participate in Mr. Cooper’s testimony. Id. at 93.
Clearly, [Brown] suffered no prejudice, and this Court did
not violate any due process right or abuse its discretion in
proceeding with the matter via video communications
technology.
Trial Ct. Op., filed Feb. 25, 2021, at 2-4.
The PCRA court did not err. Even if denying the continuance and using
advanced technology to conduct the hearing violated Brown’s right to be
present, Brown has not sustained prejudice. Although he was not present in
the courtroom for the PCRA evidentiary hearing, the use of advanced
technology allowed him to observe, hear, and participate in the hearing.
Further, he had an opportunity to speak with counsel, observe the witness,
and communicate with the court. He was not “excluded” from the hearing.
Brown’s claim that it was “unclear” whether he and the witness could see each
other does not establish prejudice. Brown’s Br. at 16. The PCRA court states
that Brown was able to observe the witnesses. His further assertion that if he
had been physically present, he could have privately consulted with counsel
is likewise belied by the PCRA court, which states that it afforded Brown the
opportunity to do so at the beginning of the hearing.
Order affirmed.
- 10 -
J-S25020-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
- 11 -