Com. v. Bracco, D.

• Court: Superior Court of Pennsylvania
• Decided: May 1, 2024
• Docket: 699 WDA 2023
• Status: Unpublished

Opinion

J-S05011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID ALLEN BRACCO : : Appellant : No. 699 WDA 2023

Appeal from the PCRA Order Entered June 2, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001985-2019

BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED: MAY 1, 2024

David Allen Bracco appeals from the order entered by the Erie County

Court of Common Pleas on June 2, 2023, denying his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, after

a hearing. For the reasons discussed below, we find the PCRA court properly

denied Bracco relief and affirm.

We previously summarized the factual and procedural history on direct

appeal as follows:

On August 16, 2019, the Commonwealth charged [Bracco] with multiple offenses arising from a two-day crime spree, from June 6 - 7, 2019, which ended with [Bracco]’s apprehension and arrest. [Bracco] was immediately incarcerated in the Erie County Prison. On October 9, 2019, [Bracco] filed a motion for a psychiatric evaluation of competency and mental state, which the trial court granted and ordered to be completed within 45-days. However, [Bracco] never followed through with the evaluation and the trial court listed the case for trial during the February 2020 term. J-S05011-24

On January 29, 2020, [Bracco] filed a motion for continuance, requesting additional time to negotiate a plea agreement, or, if no agreement could be reached, prepare for trial. The trial court granted the motion and relisted [Bracco]’s case for the April 2020 term. However, the advent of the COVID-19 pandemic caused [Bracco]’s trial to be postponed.

On June 26, 2020, [Bracco] filed a second motion for psychiatric evaluation of competency. The trial court granted the motion and directed the evaluator to complete the report within 60 days. On August 3, 2020, the evaluating psychiatrist deemed [Bracco] competent to stand trial.

On September 21, 2020, [Bracco] filed a motion for release on nominal bond. …

On October 12, 2020, the parties appeared for jury selection, and the trial court dismissed [Bracco]’s motion for release on nominal bond as moot.

Commonwealth v. Bracco, 226 WDA 2021, at *1-2 (Pa. Super. filed

December 3, 2021) (unpublished memorandum).

On October 14, 2020, following a jury trial, Bracco was convicted of two

counts of criminal trespass and one count each of robbery of a motor vehicle,

theft by unlawful taking, criminal mischief, robbery, simple assault, recklessly

endangering another person, unauthorized use of automobiles or other

vehicles, accidents involving damage to attended vehicle or property, and

several related summary offenses.

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On January 20, 2021, Bracco was sentenced to an aggregate term of

105 to 210 months’ incarceration,1 with credit for time served. Bracco filed a

motion to amend credit for time served, seeking additional credit for time

served from the date of his arrest to the date of his preliminary hearing. The

trial court granted Bracco’s motion.

Bracco filed a timely notice of appeal to this Court and we affirmed the

judgment of sentence. See Commonwealth v. Bracco, 226 WDA 2021 (Pa.

Super. filed December 3, 2021) (unpublished memorandum). The

Pennsylvania Supreme Court subsequently denied allowance of appeal.

On September 12, 2022, Bracco filed a timely pro se PCRA petition.

PCRA counsel was appointed who subsequently filed a petition to withdraw

and a Finley2 “no merit” letter. Bracco filed a motion to strike the petition to

withdraw, including a request for the appointment of new counsel. In

response, the PCRA court scheduled an evidentiary hearing. Prior to the

evidentiary hearing, Bracco filed a motion for change of counsel. PCRA counsel

thereafter filed another petition for leave to withdraw and for appointment of

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1 We note the calculation of Bracco’s aggregate prison sentence differs in certain filings within the record. We took our calculation directly from the sentencing order. As none of Bracco’s issues on appeal directly challenge the length of the sentence, we do not find that any discrepancy in the term length affects our review.

2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Bradley3 counsel, due to Bracco’s indication that he planned to raise claims

of ineffective assistance of PCRA counsel. The court granted PCRA counsel

leave to withdraw and appointed new counsel to represent Bracco at the

evidentiary hearing.

On March 2, 2023, an evidentiary hearing was held. The trial court

subsequently denied the PCRA petition. This timely appeal followed.

Bracco raises the following issues on appeal:

1. The trial court erred in failing to allow [] Bracco to represent himself when he requested in written correspondence that he be permitted to do so.

2. The trial court erred in failing to find that trial counsel was ineffective by admitting to the jury that [] Bracco accepted responsibility for some of the crimes for which he was charged.

3. Original trial counsel erred in failing to file a motion to include a diminished capacity defense which would have thereby allowed second trial counsel to argue against the Commonwealth's Motion in Limine.

4. The trial court erred in failing to find that trial counsel was ineffective in failing to raise or present mitigating issues at the time of sentencing.

Appellant’s Brief, at 2.

“Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). To be eligible for

3 Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

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relief pursuant to the PCRA, Bracco must establish, inter alia, his conviction

or sentence resulted from one or more of the enumerated errors or defects

found in 42 Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must

also establish the issues raised in the PCRA petition have not been previously

litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is

waived if the petitioner could have raised it but failed to do so before trial, at

trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S.A. § 9544(b).

Preliminarily, Bracco’s claim of trial court error in failing to allow Bracco

to represent himself is waived because he could have raised it on direct appeal

but failed to do so. See 42 Pa.C.S.A. § 9543(a)(3) (petitioner must plead and

prove that allegation of error has not been waived); 42 Pa.C.S. § 9544(b) (“an

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial [or] on appeal[.]”).

We note, even if not waived, this claim would be without merit. As our

Supreme Court has held: “[i]t is well established that a defendant can waive

the right of self-representation after asserting it.” Commonwealth v.

Bryant, 855 A.2d 726, 737 (Pa. 2004); see also id. (“[o]nce asserted ... the

right to self-representation may be waived through conduct indicating that

one is vacillating on the issue or has abandoned one's request together”).

Bracco’s trial counsel, Attorney Nathaniel Strasser, clarified at the

evidentiary hearing that he was Bracco’s second trial counsel. See N.T.,

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Evidentiary Hearing, 3/2/23, at 6. Attorney Strasser took over representation

of Bracco around February or March of 2020 when Bracco’s initial counsel left

the public defender’s office. See id. Attorney Strasser did not meet with

Bracco until May of 2020 due to a pending competency evaluation and reasons

having to do with the COVID-19 pandemic. See id. at 8.

Attorney Strasser testified that Bracco did not express a desire for him

to withdraw or to proceed pro se during any of his visits with Bracco, which

he estimated to be around twenty visits. See id. at 9. Attorney Strasser stated

that any issues with Bracco wanting to proceed pro se occurred prior to his

representation. See id. Attorney Strasser acknowledged that when he took

over representation of Bracco, he was aware of letters that Bracco had

previously filed requesting to represent himself pro se. See id. at 20.

However, after meeting with Bracco and spending a lot of time with him,

Bracco wanted Attorney Strasser as his attorney. See id. Attorney Strasser

stated that he and Bracco had a good relationship. See id. at 9-10.

Bracco admitted that he did not ask Attorney Strasser about

representing himself. See id. at 25, 36. Bracco indicated that any problems

he had were with prior counsel and that he “had already exhausted [him]self

as far as trying to represent [him]self” by the time Attorney Strausser was

appointed. See id. at 26.

Because Bracco abandoned his attempt to proceed pro se and chose to

proceed with Attorney Strasser, his claim is without merit.

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All three of Bracco’s remaining claims raise allegations of ineffectiveness

of counsel. As such, he was required to plead and prove:

ineffective 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 … Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted).

Moreover, “[w]e presume counsel is effective and place upon Appellant

the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant

relief only if an appellant satisfies each of the three prongs necessary to prove

counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-

22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim

if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at

321 (citation omitted).

First, Bracco claims trial counsel was ineffective for admitting to the jury

that Bracco accepted responsibility for some of the crimes for which he was

charged. Bracco relies on McCoy v. Louisiana, 138 S.Ct. 1500 (2018), for

the proposition that trial counsel may not admit a defendant’s guilt as a trial

strategy. However, Bracco misconstrues the holding from McCoy.

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As the trial court correctly points out, McCoy is not so broad as to stand

for the proposition that admission of guilt can never be utilized as part of a

trial strategy. Rather, McCoy holds that trial counsel may not admit the

defendant’s guilt as a trial strategy when the defendant has expressly

indicated his objections and or disagreement with that strategy. See id. at

1509.

In opening statements, Attorney Strasser stated generally as follows:

Give [Bracco] his day in court. Allow him to present his side of the case. If you do that, ladies and gentlemen, maybe you will find him guilty of some of the charges. Maybe you will find him not guilty of some other charges.

N.T., Jury Trial Day 1, 10/13/20, at 28. During closing argument, Attorney

Strasser stated more specifically that Bracco was willing to accept

responsibility for some of the offenses, including both counts of trespass,

robbery, theft, and accidents involving damage. See N.T., Jury Trial Day 2,

10/14/20, at 111-12, 122. However, Attorney Strasser was clear that they

were disputing any charges that involved the element of intent. See id. at

113; 118 (“He is telling you to find him guilty of major serious crimes, but he

can't take responsibility for his mental state that he did not have while he was

committing these other crimes."). Attorney Strasser specifically asked the jury

to find Bracco not guilty of aggravated assault, criminal mischief, simple

assault, and terroristic threats. See id. at 122-23.

At the evidentiary hearing, Attorney Strasser stated that he and Bracco

discussed trial strategies “extensively”. Id. at 10. He stated Bracco did not

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risk anything by going to trial because the plea offers were unsatisfactory.

See id. He believed the trial strategy was successful because Bracco was

found not guilty of the most serious crime, aggravated assault, “because he

explained that he did it, but he didn't have the intent to do it, and the

aggravated assault required that intent, and so that was a win.” Id. Attorney

Strasser discussed the trial strategy with Bracco, including the defense that

even though it was clear he did some of the things he was accused of, he did

not possess the requisite mens rea due to being intoxicated by a controlled

substance. See id. at 11-12. Attorney Strasser testified that Bracco agreed to

this strategy and that Bracco’s testimony was consistent with this strategy.

See id. at 13. Attorney Strasser believed the strategy was reasonable and

ultimately successful. See id. at 14. Bracco never indicated that he was not

happy with the above strategy, either pretrial or during trial. See id. at 15.

As the record does not indicate that Bracco ever indicated his objection

and or disagreement with the trial strategy, we agree with the PCRA Court

that counsel’s testimony is credible and convincing, and therefore find this

issue is without merit.

We find Bracco’s next issue is waived, as it was not properly preserved.

Upon review, it appears the issue raised on appeal differs from the issue

Bracco raised in his PCRA petition.

On appeal, Bracco argues original trial counsel was ineffective for failing

to file a motion to include a diminished capacity defense pursuant to

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Pa.R.Crim.P 568. Specifically, Bracco argues this error resulted in Attorney

Strasser being unable to argue against the Commonwealth's motion in limine,

which the trial court granted, thereby excluding Bracco’s mental health issues

from trial.

However, in his PCRA petition, Bracco argued that the trial court’s “gag

order violates [Bracco’s] Constitutional Rights to Free Speech.” PCRA Petition,

9/12/22, at 5. Later in the petition, he expanded on this argument by asserting

the court “violated his constitutional right of free speech when he wanted to

speak on his state of well being as well as his state of mind”, and claimed that

“[h]ad [he] had a chance to speak on [h]is mental health and the state of

mind he could have changed the outcome of trial.” Id. at 12.

Confusion over this claim is shown by its reference during the

evidentiary hearing, as well as the trial court’s attempt to address it in the

trial court opinion. At the evidentiary hearing, Attorney Strasser was asked

about Bracco’s reference to a gag order in the following exchange:

Q. Okay. The defendant makes reference to some sort of gag order. Are you familiar with that at all? Did you or anyone to your knowledge issue any sort of gag order on the petitioner?

A. No.

N.T., Evidentiary Hearing, 3/2/23, at 16. Other than briefly stating a “gag

order” was in the trial transcripts and that he “was not to mention anything

that had a scientific name as far as, like, experiencing paranoia and stuff like

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that”, id. at 31, Bracco did not provide any support for this argument or clarify

what he was attempting to argue.

In its opinion, the trial court attempts to “guess” to what Bracco is

referring. Trial Court Opinion, 6/2/23, at 6; see also id. at 7 (court concluding

Bracco is not entitled to relief on this issue because no gag order existed, or

for the reasons set forth in the court’s “interpretation” of the claim if that

interpretation were correct).

The claim as stated in the PCRA petition is a proper post-conviction

contention framed as a claim of trial court error. On appeal, Bracco attempts

to present a similar, but different, argument in terms of ineffective assistance

of counsel for failing to file a motion to include a diminished capacity defense.

He does so without any reference to an alleged “gag order” or any

constitutional concerns. As this issue was not properly preserved before the

PCRA court, we find it waived.

Finally, Bracco claims trial counsel was ineffective for failing to raise or

present mitigating issues at the time of sentencing.

In his PCRA petition, Bracco only generically claimed “trial counsel took

no time to develop any mitigating factors to assist in his trial and Sentencing

hearing. Counsel should have taken the time with defendant to find these

factors but neglected the fact.” PCRA Petition, 9/12/22, at 13.

When asked at the evidentiary hearing to explain what mitigating factors

he thought Attorney Strasser failed to bring up, Bracco stated as follows:

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I would have liked to have heard the fact that Mr. Bracco got out, maxed a 21-year sentence in 2010 and that he worked starting with minimum wage, worked his way up to where he became an electrician, and he was out for nine years before he ever got into anymore trouble or anything like that and that he paid his taxes, and I realize people out there do that every day, day in and day out, and I'm just saying that the hills that I overcame, the bars that I overcame, and the end, well, yeah, the end turned out bad. You know, I at least showed that I had some rehabilitative possibilities.

Id. at 31.

Bracco’s claims that Attorney Strausser failed to develop any mitigating

factors at sentencing is belied by the record. At the sentencing hearing,

Attorney Strausser specifically implored the court “to show some leniency,

some mitigation as well.” N.T., Sentencing Hearing, 1/20/22, at 12. Attorney

Strausser asked the court to consider mitigation or “giving Mr. Bracco a break”

based on the competency evaluation that was completed which found that

Bracco had been in a drug induced paranoia at the time of the incident in

question. See id. at 12-13. Attorney Strausser also asked the court to

consider that Bracco accepted responsibility for the charges he was to be

sentenced on. See id. at 13.

Attorney Strausser also discussed Bracco’s previous lengthy state

sentence and indicated that Bracco did not reoffend after getting out of jail.

See id. at 16. Attorney Strausser made it clear that Bracco “spent a large

period of time away from the criminal justice system” and got a job and went

to school. Id. Attorney Strausser labeled Bracco as a “hard worker” and

“somebody that can stay out of trouble.” Id. Attorney Strausser concluded his

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request for mitigation by re-asserting his belief that Bracco is a “hard worker,

he's somebody that takes responsibilities for himself” and that these crimes

resulted from his drug usage. Id. at 21.

Bracco also had the opportunity to speak on his own behalf. In speaking

to the court, Bracco offered an apology to the court and the victims. Notably,

Bracco did not make any of the specific points he claimed Attorney Strausser

should have brought up. It would appear this is because Attorney Strausser

did in fact speak to those points. Accordingly, Bracco’s final claim is without

merit.

As all of Bracco’s claims are either waived or without merit, we conclude

the trial court did not err in dismissing Bracco’s PCRA petition. We therefore

affirm the order dismissing Bracco’s PCRA petition.

Order affirmed.

FILED: 5/1/2024

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