Com. v. Brooks, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL BROOKS :
:
Appellant : No. 970 EDA 2020
Appeal from the PCRA Order Entered February 24, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005547-2012
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 16, 2021
Appellant, Michael Brooks, appeals pro se from the post-conviction
court’s order denying his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of
Appellant’s case, as follows:
FACTUAL BACKGROUND
Mr. Daniel Buchanan[, the victim,] battled an addiction to opiates.
N.T.[,] 01/29/13, [at] 147-50. The victim attempted to stay
clean, sustained employment, and attempted to support his
daughter prior to his murder. [Id. at] 148. The victim had a
reputation in the drug-world for not paying drug dealers. [Id. at]
266. Appellant, involved in the drug trade, was owed money by
the victim. N.T.[,] 01/30/13, [at] 175.
On June 15, 2007, around 5:00 a.m., the victim was in his car
speaking with another drug addict on the sidewalk, Ms. Sandra
Wilson, when Appellant recognized him. N.T.[,] 01/29/13, [at]
268-69. Appellant then approached the victim’s vehicle and
screamed[,] “I’m about to merk [sic] your ass[,]” while reaching
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for something behind his back. [Id. at] 269. Ms. Wilson then
heard several gunshots as she turned her back to the vehicle and
moved away. [Id. at] 270, 290. Another eyewitness made a
statement to police that she saw Appellant state[,] “That’s the
nigger that taxed me. I’m going to murk his ass[,]” just before
he pulled out a handgun from his back waistband and several
shots rang out. N.T. 01/30/13, pp. 38-39. A third witness heard
the gunshots, saw Appellant in the proximity, and then [saw him]
run into a nearby home. [Id. at] 65.
The victim was shot four times by Appellant from the street into
the victim’s car. N.T.[,] 01/29/13, [at] 36-37. In an attempt to
flee, the victim drove off and crashed into a tree. N.T.[,]
01/28/13, [at] 158-59, 169-71; N.T.[,] 01/29/13, [at] 34-35.
The victim died as a result of the gunshot wounds, not from the
vehicle crash. N.T.[,] 01/29/13, [at] 39-40, 52. Blood analysis
revealed the victim had a blood alcohol content of .059 and some
cocaine in his system. [Id. at] 56.
After the shooting, Appellant entered a nearby home with a gun
in his possession, where his girlfriend (at the time) was staying,
to wash his hands with bleach. [Id. at] 170-71. After washing
away any evidence of gun powder residue, Appellant fled in a
friend’s vehicle and called his girlfriend[,] instructing her to visit
the scene of the crime for him. [Id. at] 172. During the
aforementioned phone call, Appellant admitted to shooting the
victim and believing he had killed the victim. [Id. at] 173-74.
Appellant then told his girlfriend[] that he would kill her and her
family if she cooperated [with] law enforcement. [Id. at] 174.
PROCEDURAL HISTORY
On February 4, 2013, Appellant was found guilty by a jury of [first-
degree murder],4 possession of a firearm prohibited,5 firearms not
to be carried without a license,6 and possessing instruments of
crime7 for the murder of Mr. Buchanan. On March 14, 2013, this
[c]ourt sentenced Appellant to life imprisonment for the conviction
for [f]irst[-d]egree [m]urder, a consecutive 5 to 10 years of
incarceration for [p]ossession of a [f]irearm [p]rohibited, and a
consecutive 3½ to 7 years of incarceration for [c]arrying a
[f]irearm without a [l]icense. On March 22, 2013, Appellant filed
a motion for post[-]sentence relief. On August 6, 2013, this
[c]ourt denied Appellant’s post-sentence motion.
4
18 Pa.C.S. § 250[2]([a]).
5
18 Pa.C.S. § 6105([a])(1).
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6
18 Pa.C.S. § 6106([a])(1).
7
18 Pa.C.S. § 907([a]).
On March 13, 2014, Appellant filed a pro se PCRA petition and he
was appointed counsel. On August 3, 2016, by agreement of the
parties, this [c]ourt granted PCRA relief and Appellant’s direct
appeal rights were reinstated.
Appellant filed a pro se appeal to the Superior Court. On August
14, 2018, the Superior Court … affirmed his judgment of sentence.
[See Commonwealth v. Brooks, 195 A.3d 991 (Pa. Super.
2018) (unpublished memorandum).] Appellant’s judgment [of
sentence] became final on September 13, 2018.
On May 2, 2019, Appellant filed another [pro se] PCRA [petition]
and counsel was appointed by this [c]ourt to represent him. On
September 4, 2019, PCRA counsel filed a motion requesting leave
to amend the petition to raise the following claim: “that trial
counsel was ineffective for failing to object to the testimony of
Officer Mary Reiff, wherein she testified that [an] eyewitness[,]
Ms. Sandy Wilson[,] identified [Appellant] as the person who shot
the victim, [because] that … testimony was hearsay and violated
his right to confrontation.” On September 11, 2019, this [c]ourt
granted the amendment.
On September 25, 2019, the Commonwealth filed an answer to
Appellant’s PCRA [petition].
On October 3, 2019, this [c]ourt issued a [Pa.R.Crim.P. 907]
notice of intent [to dismiss Appellant’s PCRA petition without a
hearing,] based on the Commonwealth’s answer and the record in
the case.
On November 4, 2019, PCRA counsel filed a motion to withdraw
his appearance due to lack of meritorious issues[,] and a
[Turner/Finley no-merit] letter.[1] On December 5, 2019,
Appellant filed an objection to PCRA counsel’s no-merit letter and
motion to withdraw.
On December 13, 2019, this [c]ourt scheduled a video hearing
[for] February 20, 2020. On February 20, 2020, a PCRA hearing
was held. On February 24, 2020, this [c]ourt denied Appellant’s
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA petition based on counsel’s [Turner/Finley] letter and the
PCRA hearing. This [c]ourt also granted counsel’s motion to
withdraw.
On February 26, 2020, Appellant filed a notice of appeal to the
Superior Court.[2]
STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
On March 31, 2020, this [c]ourt ordered Appellant to file a concise
statement of errors complained of on appeal. On April 24, 2020,
Appellant filed his concise statement of errors[,] alleging the
following issues, verbatim:
1. PCRA Counsel provided deficient performance and
ineffective assistance of counsel when counsel filed an
amended PCRA Petition then subsequently filed a Finley
letter against counsel’s own amended PCRA petition
effectively acting as an attorney for the prosecution.
2. The PCRA Court Judge was bias when the Judge stated
during trial that he knew and felt, during the sentencing
phase, that the defendant committed the crime. PCRA
Counsel failed to preserve this claim.[3]
PCRA Court Opinion (PCO), 9/25/20, at 1-5 (footnotes and some citations to
the record omitted).
In Appellants pro se brief to this Court, he presents the following single
issue in his Statement of the Questions Presented: “Whether PCRA counsel
provided deficient performance and ineffective assistance of counsel when
counsel filed an amended PCRA petition[, and] then subsequently filed a
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2
We note that Appellant filed two identical, pro se notices of appeal, one on
March 26, 2020 (docketed at 970 EDA 2020), and one on April 6, 2020
(docketed at 969 EDA 2020). The appeal at 969 EDA 2020 was dismissed by
this Court as duplicative of the present, timely appeal at 970 EDA 2020.
3
Appellant has abandoned this issue on appeal.
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[Turner/]Finley letter against counsel’s own amended PCRA petition[,]
effectively acting as an attorney for the prosecution?” Appellant’s Brief at 3.4
Preliminarily, we observe that,
“[o]n appeal from the denial of PCRA relief, our standard and
scope of review is limited to determining whether the PCRA court’s
findings are supported by the record and without legal error.”
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
(citation omitted). “[Our] 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 PCRA court level.”
Commonwealth v. Koehler, … 36 A.3d 121, 131 ([Pa.] 2012)
(citation omitted). “The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court.”
Commonwealth v. Spotz, … 18 A.3d 244, 259 ([Pa.] 2011)
(citation omitted). “However, this Court applies a de novo
standard of review to the PCRA court’s legal conclusions.” Id.Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (en
banc).
Within Appellant’s single issue, he presents several sub-claims of PCRA
counsel’s ineffectiveness. We will address each in turn, applying the following
standard of review:
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
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4
The PCRA court noted that Appellant raised this issue in his pro se response
to the court’s Rule 907 notice, thereby preserving his challenge to PCRA
counsel’s effectiveness for our review. See PCO at 5; Commonwealth v.
Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009) (holding that a petitioner preserves
a challenge to his post-conviction counsel’s effectiveness by presenting it in
his response to the court’s Rule 907 notice and/or counsel’s Turner/Finley
letter).
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interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted).
In this case, Appellant first posits that his PCRA counsel was ineffective
for failing to argue that his trial counsel acted ineffectively by not challenging
the Commonwealth’s “extract[ing] provisions from … 42 Pa.C.S.[] § 9711,
specifically [sections] 9711(a)(1)[,] (2)[,] (3)[,] and (4), [which] constituted
an encroachment on legislative intent.” Appellant’s Brief at 7. Section 9711
governs the procedures for determining whether a defendant convicted of
first-degree murder “shall be sentenced to death or life imprisonment.” 42
Pa.C.S. § 9711(a). Appellant seemingly argues that, because the jury in his
case was not asked to decide if he should be sentenced to death, the
Commonwealth “altered/changed the provisions” of section 9711, thereby
rendering it unconstitutional and his sentence illegal. Appellant’s Brief at 7.
Appellant’s argument is meritless. As this Court observed when he
raised a similar claim on direct appeal:
Section 9711 governs sentencing procedures in capital cases. It
does not apply to this case because the Commonwealth never
pursued the death penalty. Appellant appears to argue that his
conviction is invalid because the jury never had the option of
imposing the death penalty. We see no merit in an argument that
Appellant should have been exposed to a harsher sentence than
what he received.
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Commonwealth v. Brooks, No. 2816 EDA 2016, unpublished memorandum
at 4 (Pa. Super. filed Aug. 14, 2018). Clearly, it would have been
unreasonable for Appellant’s trial counsel to have demanded that the
Commonwealth seek the death penalty, thereby triggering the procedures set
forth in section 9711. Moreover, his sentence is not illegal simply because the
Commonwealth chose to concede to the imposition of life incarceration, rather
than seeking the death penalty. Thus, Appellant’s PCRA counsel was not
ineffective for failing to raise this trial-counsel-ineffectiveness claim.
Next, Appellant claims that his counsel was ineffective “for objecting[,]
but failing to move for a mistrial[,] when Officer Mary Reiff of the Bristol
Township Police Department recounted the out[-]of[-]court statement made
by Ms. Sandra Wilson, a witness to the murder.” PCO at 6-7. The PCRA court
set forth the at-issue testimony by Officer Reiff, as follows:
[The Commonwealth]: And describe her demeanor in the car ride
from Bloomsdale back to your headquarters?
Officer Reiff: Oh, she never stopped talking. And it was how
frightened she was about what was going on and how frightened
she was of [Appellant] for her safety and the safety of her family.
[The Commonwealth]: And did she continue to indicate to you
during the car ride what she had seen [Appellant] do, if you recall?
Mr. Gamburg: Objection to [Appellant]. Never identified
[Appellant.] She said Pooh.
The Court: She said someone named Pooh.
[The Commonwealth]: Okay, Sorry.
The Court: You will have to rephrase.
Id. at 7 (quoting N.T., 1/30/13, at 22-23).
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Herein, Appellant does not explain on what basis his counsel should have
moved for a mistrial. Instead, he simply quotes the above testimony, and
then states that “[a]n evidentiary hearing is required to determine whether
trial counsel’s failure to submit a motion to the court for a mistrial had any
reasonable basis designed to effectuate [Appellant’s] interests. If not, then
counsel’s inactions constituted a miscarriage of justice.” Appellant’s Brief at
8 (citation omitted). Appellant’s undeveloped argument fails to convince us
that his underlying claim of trial counsel’s ineffectiveness has arguable merit,
or that he was prejudiced by counsel’s failure to move for a mistrial.
Therefore, he has not demonstrated that his PCRA counsel acted ineffectively
by withdrawing, rather than litigating this issue.
Lastly, Appellant contends that his PCRA counsel should have argued
that his trial counsel acted ineffectively by not objecting to the prosecutor’s
“expressions of personal opinions and beliefs as to the credibility of the
Commonwealth’s witnesses.” Id. at 9. Appellant maintains that the following
remarks by the prosecutor were objectionable:
[The Commonwealth]: Next[,] eyewitness, Ashley Thomas.
Ashley Thomas, like Joanne, like Sandy, she’s scared. Ashley’s
scared of two things, ladies and gentlemen. She is scared of
retaliation. We know that’s real. We know that’s legitimate.
[The Commonwealth]: You may think I’m crazy for saying this,
but I submit to you, ladies and gentlemen, that Joanna William’s
[sic] prior statements to the police actually corroborate what she
is telling you at trial.
Id. at 9 (citations to the record omitted).
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The PCRA court, and Appellant’s PCRA counsel, both concluded that the
statements contested by Appellant were not improper expressions of personal
belief. See PCO at 9 (citation omitted); Petition to Withdraw, 11/4/19, at
Exhibit A pg. 3 (No-Merit Letter). On appeal, Appellant offers no response to
the court’s and counsel’s conclusions. He fails to explain what was improper
about the prosecutor’s arguments, or offer any discussion of how those
remarks prejudiced the jurors to the extent that he was denied a fair trial.
See Commonwealth v. Cox, 728 A.2d 923, 931 (Pa. 1999) (“Reversible
error exists only if the unavoidable effect of the supposedly offending language
would prejudice the jurors and form in their minds a fixed bias and hostility
toward the defendant such that they could not weigh the evidence and render
a true verdict.”). Thus, Appellant has not established that his underlying
ineffectiveness claim has arguable merit, or that he was prejudiced by trial
counsel’s failure to object to the prosecutor’s comments. Consequently, PCRA
counsel was not ineffective by deciding not to pursue this claim on collateral
review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/21
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