J-S12023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLINTON BROWN : : Appellant : No. 601 EDA 2020
Appeal from the PCRA Order Entered February 7, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004944-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLINTON BROWN : : Appellant : No. 603 EDA 2020
Appeal from the PCRA Order Entered February 7, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004946-2014
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED JUNE 22, 2021
Appellant Clinton Brown appeals from the orders denying his timely first
Post-Conviction Relief Act1 (PCRA) petition without an evidentiary hearing.
Appellant contends that trial counsel was ineffective for failing to preserve his
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1 42 Pa.C.S. §§ 9541-9546. J-S12023-21
right to challenge the excessiveness of the sentences imposed by the trial
court. We affirm.
We state the facts and procedural history as set forth by this Court in
resolving Appellant’s direct appeal:
Sharday Williams testified that on January 30, 2014, she and her boyfriend, Derrick Moye, left Moye’s house and were approaching her car when [Appellant] approached her from behind, snatched her wallet, and started running. When Moye started to chase after [Appellant], Rasheed Hall stepped out from in front of a parked car and fired one shot into Moye’s chest from approximately one foot away. [Appellant] and Hall then fled together on foot, running in the same direction. When the police arrived, Williams described the assailant who stole her wallet as a black male in his twenties who was six feet and one inch tall, with a thin build and brown complexion, and wearing a black hoodie and black pants. Williams described the shooter as wearing a black jacket with a “Dickies” brand logo on the front and blue pants.
Philadelphia Police Officer Matthew Lally testified that on January 30, 2014, he was working in the neighborhood where the robbery occurred when he received information about the shooting and robbery and received a “flash” description of one of the assailants. The flash information described one assailant as a black male in his twenties with a thin build, facial tattoos, and a black hoodie. Based on his experience as an officer for the 39th Police District for ten years, and his numerous interactions with [Appellant] during that time, Officer Lally knew that [Appellant] matched the flash description. Officer Lally went to [Appellant’s] home and spoke with his mother. While there, [Appellant] called his mother, and Officer Lally got on the phone and asked [Appellant] where he was. [Appellant] claimed to be with his girlfriend in West Philadelphia. Officer Lally left the house, and continued searching for [Appellant]. Approximately twenty to thirty minutes later, Officer Lally found [Appellant], together with Hall and a third man, several blocks away.
Williams was brought to the street where [Appellant] and Hall had been detained. She identified [Appellant] as the one who had robbed her and Hall as the one who had shot Moye. Williams
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testified that her identification of them was based solely on their clothing. [Appellant] and Hall were then taken into custody, and their cell phones were confiscated during a search incident to arrest. Although Hall’s phone was locked, investigators secured access to [Appellant’s] phone. The call logs of [Appellant’s] phone listed multiple calls to and from a contact listed as “Sheed,” including two calls immediately after the shooting. When investigators called this number, Hall’s phone rang.
Investigators obtained a warrant to search Hall’s home, where they discovered several rounds of ammunition. Among the ammunition were fourteen .22 caliber rounds. A silver .22 caliber revolver was found roughly one block from [Appellant’s] house. The gun had five live rounds and one spent casing. Hall’s clothes tested positive for gunpowder residue.
Detective Ted Wolkiewicz testified that he interviewed [Appellant] on January 31, 2014. During the interview, [Appellant] refused to sign any statements prepared by Detective Wolkiewicz, but admitted verbally that he was the one who had grabbed Williams’ wallet, although he did not know that Hall had a gun at the time. Despite this admission, [Appellant] attempted to procure alibi testimony from an ex-girlfriend, Tyenesha Leach. However, in Leach’s statement to Detective Wolkiewicz, she admitted that she was not with [Appellant] that night, and she was testifying because [Appellant] had asked her to support him.
[Appellant] was charged in two separate dockets, one of which contained the charge for conspiracy to commit aggravated assault [18 Pa.C.S. §§ 903, 2702] (Brown I) and the other which contained the charges for robbery [18 Pa.C.S. § 3701] and conspiracy to commit robbery [18 Pa.C.S. § 903, 3701] (Brown II). However, these two dockets were consolidated for the purpose of trial. A jury convicted [Appellant] on May 22, 2015. On August 13, 2015, [Appellant] was sentenced to 72 to 144 months’ imprisonment for criminal conspiracy to commit aggravated assault, 102 to 204 months’ imprisonment for robbery, and 78 to 156 months’ imprisonment for conspiracy to commit robbery. The robbery and conspiracy to commit robbery sentences were ordered to run concurrent to each other, while the conspiracy to commit aggravated assault sentence was ordered to run consecutive to the other sentences [for a total aggregate sentence of 174 to 348 months]. On August 24, 2015, [Appellant] filed a post-sentence motion for reconsideration of sentence for
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the Brown I charges, which was denied on September 17, 2015. On April 4, 2016, [Appellant] filed a timely notice of appeal for Brown I. On April 4, 2016, [Appellant] filed a timely notice of appeal nunc pro tunc for Brown II. [Appellant] filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on February 16, 2016 for Brown I. [Appellant] filed a Rule 1925(b) concise statement of errors complained of on appeal on April 4, 2016 for Brown II. The trial court filed its Rule 1925(a) opinion for Brown I on May 2, 2016, and its Rule 1925(a) opinion for Brown II on July 1, 2016.
Commonwealth v. Brown, 1046 EDA 2016, 2017 WL 3624095, at *2 (Pa.
Super. filed Aug. 24, 2017) (unpublished mem.) (citations omitted and
formatting altered), appeal denied, 181 A.3d 1068 (Pa. 2018).2
Appellant subsequently filed a direct appeal in which he challenged the
sufficiency of the evidence and argued that the trial court’s aggregate
sentence of 174 to 348 months was “manifestly excessive.” See id. at *2,
*4. On August 24, 2017, this Court affirmed the trial court’s judgment of
sentence. Importantly, the Court noted that Appellant waived his
discretionary sentencing claims with respect to the robbery charges because
he failed to preserve them in his post-sentence motion. See id. at *4 (stating
that “[Appellant] only challenged his sentence for conspiracy to commit
aggravated assault in his post-sentence motion for reconsideration of
2 At trial, Appellant was represented by Angelina Dagher, Esq. (trial counsel).
Trial counsel filed the post-sentence motion for reconsideration of sentence on August 24, 2015. Attorney Dagher formally withdrew as counsel on September 17, 2015, and the trial court subsequently appointed David Barrish, Esq., as direct appeal counsel.
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sentence. Consequently, he waived his challenges of excessiveness for his
robbery sentence and for his conspiracy to commit robbery sentence.”).
In any event, the Court rejected Appellant’s sentencing claims as
meritless, and explained:
[Appellant] argues that his sentence was an abuse of discretion because his prior record was generated largely from arrests when he was a juvenile, and the court did not adequately consider the mitigating evidence. We have consistently held that a contention that the trial court did not adequately consider mitigating circumstances does not raise a substantial question sufficient to justify appellant review of the merits of such a claim. Nor does [Appellant] cite to a specific provision of the Sentencing Code or to a fundamental norm of the sentencing process to support his claim the judge’s consideration of [Appellant’s] juvenile record was inappropriate under the Sentencing Code. Therefore, [Appellant] has not presented a substantial question for our review, and review of the merits of his challenge to the discretionary aspects of his sentence is unwarranted.
Id. at *5. Subsequently, Appellant filed a petition for allowance of appeal,
which our Supreme Court denied on February 6, 2018.
On February 4, 2019, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed Peter Levin, Esq., who subsequently filed an amended
petition asserting that trial counsel was ineffective for failing to preserve
Appellant’s discretionary sentencing claims with respect to the robbery and
conspiracy to commit robbery convictions.
On December 13, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice
of intent to dismiss Appellant’s PCRA petition without a hearing. Appellant did
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not file a response, and on February 7, 2020, the PCRA court formally
dismissed Appellant’s PCRA petition.
Appellant filed timely notices of appeal3 and a court-ordered Pa.R.A.P.
1925(b) statement. On August 20, 2020, the PCRA court filed a responsive
opinion.
On appeal, Appellant raises two issues, which we have reordered as
follows:
1. The [PCRA] court [erred] in [denying post-conviction relief on the issue of] whether trial counsel was ineffective for failing to file a proper motion for reconsideration of sentence.
2. The PCRA court [erred] in not granting an evidentiary hearing.
Appellant’s Brief at 8 (formatting altered).
In his first issue, Appellant asserts that trial counsel was ineffective for
failing to “properly prepare” a motion for reconsideration of sentence that
challenged the excessiveness of his total aggregate sentence. Id. at 18.
Appellant notes that although trial counsel filed a motion challenging the
sentence for conspiracy to commit aggravated assault, she did not challenge
the sentences for robbery or conspiracy to commit robbery, which ultimately
resulted in waiver. See id. Appellant takes issue with the discretionary
aspects of the trial court’s sentence, arguing that the total aggregate sentence
“was harsh and unreasonable and had counsel filed a proper motion, the issue
would have raised a substantial question on appeal.” Id. at 19. ____________________________________________
3 Appellant filed two separate notices of appeal pursuant to Pa.R.A.P. 341(a).
See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018).
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The Commonwealth responds that “[Appellant’s] claim lacks arguable
merit because he would not have prevailed on the motion for reconsideration
or on direct appeal, as he does not raise a substantial question, and the
sentencing court did not abuse its discretion.” Commonwealth’s Brief at 5.
Additionally, the Commonwealth argues that Appellant’s claim fails because
he did not address the other two requisite prongs of the ineffectiveness test.
See id. at 13.
In reviewing Appellant’s PCRA claims, we are guided by the following
principles:
[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.
Furthermore, to establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, 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. The burden is on the defendant to prove all three of the following prongs: (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.
We have explained that a claim has arguable merit where the factual averments, if accurate, could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.
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The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel’s decisions will be considered reasonable if they effectuated his client’s interests. We do not employ a hindsight analysis in comparing trial counsel’s actions with other efforts he may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa.
2019).
It is well settled that the failure to file a post-sentence motion does not
automatically give rise to a presumption of prejudice. See Commonwealth
v. Reaves, 923 A.2d 1119, 1129 (Pa. 2007). Our Supreme Court has held
that a PCRA court can reinstate a defendant’s post-sentence rights nunc pro
tunc if the defendant successfully pleads and proves he was deprived of the
right to file and litigate post-sentence motions as a result of counsel’s
ineffectiveness. See Commonwealth v. Liston, 977 A.2d 1089, 1094 n.9
(Pa. 2009). However, our Supreme Court has emphasized that “the failure to
file post-sentence motions does not fall within the limited ambit of situations
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where [an appellant] alleging ineffective assistance of counsel need not prove
prejudice to obtain relief.” Liston, 977 A.2d at 1092 (citing Reaves, 923
A.2d at 1132) (footnote omitted). Thus, an appellant bears the burden of
establishing that trial counsel’s failure to file a post-sentence motion
prejudiced him; namely, that had counsel filed post-sentence motions, the
sentencing court would have granted them. See Liston, 977 A.2d at 1092–
1093.
Further, our Supreme Court has held that when this Court initially finds
an issue waived on direct appeal but then determines that the issue is
meritless, the ruling on the merits is a valid holding that constitutes the law
of the case as to the ruled-upon issue. See Commonwealth v. Reed, 971
A.2d 1216, 1220 (Pa. 2009). Further, because the ruling on the merits of the
issue is the law of the case, it constrains this Court’s review of the same issue
in subsequent collateral proceedings, even if it is nested in a claim of
ineffective assistance of counsel. See id.
Here, following our review of the record, we agree with the PCRA court
that Appellant is not entitled to relief on his ineffectiveness claim. As noted
previously, Appellant was required to prove that he suffered actual prejudice
based on trial counsel’s failure to preserve his discretionary sentencing claims
in a post-sentence motion. See Sandusky, 203 A.3d at 1043-44; Liston,
977 A.2d at 1092–1093. Because a prior panel of this Court concluded that
Appellant’s sentencing challenge did not raise a substantial question
warranting further review, see Brown, 2017 WL 3624095, at *4-5, Appellant
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cannot establish actual prejudice as a matter of law. See Reed, 971 A.2d at
1220.
In any event, to the extent Appellant claims that the trial court failed to
consider the relevant sentencing factors, his claim is belied by the record. At
the sentencing hearing, the trial court stated:
[I]n each of these matters I stated the guidelines. There are mitigating factors and aggravating factors. . . . And so weighing those factors, the protection of the public, the nature and gravity of the offense, impact of life on the victim and the community, as well as your rehabilitative needs, and considering the sentencing guidelines and the facts underlying the conviction, presentence report, mental health report, counsels arguments, the victim impact statement, the statement by [Appellant’s] family, the [Appellant’s] statement, as well as my observation of you both during the trial and at the sentencing hearing . . . . It’s my intention to depart upwards from the guidelines for the reasons I stated.
See N.T. Sentencing Hr’g, 8/13/15, 24-26.
Therefore, even if Appellant’s sentencing claims were properly before
this Court, he would not be entitled to relief. See Commonwealth v. Knox,
165 A.3d 925, 930-31 (Pa. Super. 2017), appeal denied, 173 A.3d 257 (Pa.
2017) (holding that the trial court acted within its discretion in imposing the
appellant’s sentence despite the appellant’s claim that the court failed to
consider mitigating evidence and that the sentence was excessive).
For these reasons, we conclude that Appellant has failed to prove that
he was prejudiced by trial counsel’s failure to properly file a motion for
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reconsideration of sentence. See Sandusky, 203 A.3d at 1043-44; Reaves,
923 A.2d at 1131-32. Accordingly, he is not entitled to relief.
In his second issue, Appellant asserts that the PCRA court erred by
declining to hold an evidentiary hearing on the issues raised in his amended
PCRA petition. Appellant’s Brief at 16. The Commonwealth rejects this
assertion, responding that “[Appellant] relies on boilerplate recitations of rules
of law without discussion of any issues of fact relating to trial counsel’s
ineffectiveness. Because he fails to present a developed argument, his claim
fails.” Commonwealth’s Brief at 7.
It is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
Based on our review of the record, we discern no error by the PCRA
court in declining to hold an evidentiary hearing. The record reflects that
Appellant’s claims were purely legal in nature and that he did not raise any
issues of genuine material fact pertaining to trial counsel’s ineffectiveness.
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Therefore, the PCRA court did not abuse its discretion by dismissing
Appellant’s petition without a hearing. See Maddrey, 205 A.3d at 328.
For the foregoing reasons, we conclude that Appellant’s claim of
ineffective assistance counsel merits no relief. Therefore, we affirm the PCRA
court’s order dismissing Appellant’s PCRA petition without an evidentiary
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/22/2021
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