Com. v. Browning, J.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2025
• Docket: 1735 MDA 2024
• Status: Unpublished

Opinion

J-S16028-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES MERRILL BROWNING : : Appellant : No. 1735 MDA 2024

Appeal from the PCRA Order Entered October 30, 2024 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001499-2020

BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.

MEMORANDUM BY BOWES, J.: FILED MAY 23, 2025

James Merrill Browning appeals from the order denying his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

By way of background, on July 18, 2020, the Pottsville police executed

a search warrant of Appellant’s hotel room. The affidavit of probable cause

recounted the victim’s report that while she was in Appellant’s room alone

with him, she passed out and woke up groggy. She believed that she had

been drugged. The victim also expressed that she had pain and bleeding in

her vagina that was not present before she lost consciousness. The warrant

sought evidence of intercourse and any drugs or drug paraphernalia that could

have been used to sedate the victim. See Affidavit of Probable Cause,

7/18/20. During the search of Appellant’s hotel room, police found 12.5 grams

of methamphetamine, a small plastic bag containing cocaine, $880 in cash, a J-S16028-25

digital scale, a methamphetamine pipe, and a blunt containing marijuana.

Appellant was arrested and charged with possession with intent to distribute

(“PWID”), possession of methamphetamine, possession of cocaine, possession

of drug paraphernalia, and possession of a small amount of marijuana.

After the police read him his Miranda warnings, Appellant conceded

that the money was his, but denied that he owned the methamphetamine. He

also admitted that he had people come to his hotel room to use

methamphetamine together. When he gave consent to search his cell phone,

police discovered incoming text messages indicating that Appellant

orchestrated drug transactions.

At the jury trial, Appellant moved to exclude the text messages on the

ground that they were not authenticated, which the court denied. The jury

convicted Appellant of PWID, possession of methamphetamine, possession of

cocaine, and possession of drug paraphernalia, and found him not guilty of

possession of a small amount of marijuana. The trial court sentenced

Appellant to an aggregate sentence of five to ten years of incarceration.

This Court affirmed Appellant’s judgment of sentence on direct appeal,

and he did not petition our Supreme Court to permit an appeal from that

decision. See Commonwealth v. Browning, 283 A.3d 363, 2022 WL

2721395 (Pa.Super. 2022) (non-precedential decision). Appellant timely filed

the instant pro se PCRA petition, followed by an amended petition after PCRA

counsel was appointed. Therein, Appellant argued that trial counsel was

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ineffective for, inter alia, neglecting to object to the admission of his text

messages on the basis of hearsay and declining to pursue a motion to

suppress the evidence obtained from his hotel room.

At the ensuing PCRA hearing, Detective Joseph Krammes of the

Pottsville Police Department testified that he was the applicant for the search

warrant. He explained that since the victim indicated that she had been

drugged and awoke with injuries to her vagina, he requested to search for

evidence of intercourse, along with “intoxicants, drugs, and drug

paraphernalia[.]” N.T. PCRA Hearing, 7/30/24, at 9-10. Trial counsel, Andrea

Thompson, Esquire, also testified. She explained that she did not believe that

there was “any basis” to file a suppression motion where the affidavit of

probable cause stated that the victim reported that she was sedated with

drugs. Id. at 16. She also explained that she did not object to the

introduction of Appellant’s text messages on hearsay grounds because she

believed that an authentication objection was “stronger.” Id. at 16.

By opinion and order, the PCRA court denied Appellant’s petition, and

he filed a pro se appeal. PCRA counsel submitted an application to withdraw

after being informed by Appellant that he wished to proceed pro se. This Court

remanded for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d

81 (Pa. 1998), and the PCRA court found that Appellant did not waive his right

to an attorney. PCRA counsel thus agreed to continue representation. The

court thereafter ordered a Pa.R.A.P. 1925(b) statement, but none was

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entered.1 In lieu of a Rule 1925(a) opinion, the court directed us to its

previous opinion and order. Appellant now asserts the following issues for our

determination:

Did the [PCRA] court err in denying [Appellant]’s [PCRA] petition?

A. Was trial counsel ineffective for failing to object to hearsay evidence?

B. Was trial counsel ineffective for failing to move to suppress evidence?

Appellant’s brief at 3 (some capitalization altered, some articles omitted).

Our review of an order denying a PCRA petition “is limited to the findings

of the PCRA court and the evidence of record. We will not disturb a PCRA

court’s ruling if it is supported by [the] record and is free of legal error.”

Commonwealth v. Smith, 194 A.3d 126, 132 (Pa.Super. 2018) (cleaned

up). We afford “great deference to the factual findings of the PCRA court and

will not disturb those findings unless they have no support in the record.” Id.

However, we review the court’s legal conclusions de novo, and our scope of

review is plenary. Id.

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1 This Court finds PCRA counsel’s noncompliance in filing a court-ordered Rule

1925(b) statement to be per se ineffective assistance of counsel. See Commonwealth v. Sanchez-Frometa, 256 A.3d 440, 442-43 (Pa.Super. 2021) (“This Court has held that . . . the complete failure to file the 1925(b) statement . . . is per se ineffectiveness[.]” (cleaned up)). Nevertheless, we need not remand for a statement pursuant to Rule 1925(c)(3) where the court has supplied its reasoning for the issues Appellant argues on appeal.

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Appellant challenges trial counsel’s effectiveness, for which our law is

well-settled:

[C]ounsel is presumed to have been effective and . . . the petitioner bears the burden of proving counsel’s alleged ineffectiveness. To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance, that is, there is a reasonable probability that but for counsel’s act or omission, the outcome of the proceeding would have been different. A PCRA petitioner must address each of these prongs on appeal. A petitioner’s failure to satisfy any prong of this test is fatal to the claim.

Commonwealth v. Alceus, 315 A.3d 853, 859 (Pa.Super. 2024). As to the

reasonable basis prong, “a petitioner must prove that an alternative not

chosen offered a potential for success substantially greater than the course

actually pursued.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa.

2016) (cleaned up). Counsel cannot be found to be ineffective “for failing to

raise a meritless claim.” Id.

The PCRA court concluded that Appellant did not demonstrate that

Attorney Thompson was ineffective for neglecting to object to the introduction

of his text messages on hearsay grounds, as he did not establish the requisite

prejudice. See Trial Court Opinion, 10/30/24, at 7. Specifically, the court

explained that during the execution of the search warrant, police found $880

in cash, 12.57 grams of methamphetamine, a digital scale, and baggies, which

was “all evidence indicative of drug sales.” Id. Accordingly, the court

determined that since there was other evidence of Appellant’s drug activity,

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there was not a reasonable probability that the outcome of the proceeding

would have been different. Id.

Appellant asserts that Attorney Thompson’s decision not to object on

the basis of hearsay amounted to ineffective assistance of counsel where the

text messages constituted the only direct evidence that he engaged in drug

transactions. See Appellant’s brief at 17. Since “there was no other record

that a sale occurred[,]” Appellant claims that he “suffered a clear prejudice by

having [the messages] introduced at trial[.]” Id.

We conclude that the PCRA court’s findings are supported by the record.

Appellant was convicted of multiple possession charges and PWID. To sustain

a conviction for PWID, the Commonwealth must prove “both possession of the

controlled substance and the intent to deliver the controlled substance.”

Commonwealth v. Bernard, 218 A.3d 935, 943 (Pa.Super. 2019) (cleaned

up). Factors to consider in determining whether the defendant had an intent

to deliver include “the manner in which the controlled substance was

packaged, the behavior of the defendant, the presence of drug paraphernalia,

. . . the sums of cash found in possession of the defendant[, and] expert

testimony.” Id. (cleaned up).

Disregarding the text messages, the Commonwealth’s evidence verified

Appellant’s possession of narcotics with the intent to distribute. Police found

in his hotel room $880 in cash, 12.57 grams of methamphetamine, and

packaging materials. Thus, contrary to Appellant’s assertion, the

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Commonwealth presented evidence independent of his text messages that he

possessed a controlled substance with the intent to deliver. See

Commonwealth v. Mosley, 114 A.3d 1072, 1080 (Pa.Super. 2015) (holding

that even where the trial court improperly admitted text messages

demonstrating that Mosley orchestrated drug transactions, the

Commonwealth nonetheless presented “substantially similar evidence

showing that Mosley possessed the drugs with the intent to deliver” to uphold

his conviction for PWID, such as $117 in cash, two cell phones, and clear

plastic baggies containing 10.5 grams of cocaine, 0.64 grams of heroin, and

6 oxycontin pills). Therefore, Appellant has not proved that but for Attorney

Thompson’s omission, the outcome of this matter would have changed.

The PCRA court also determined that Appellant did not establish that

trial counsel had no reasonable basis for declining to pursue a suppression

motion. Rather, it found that that the affidavit of probable cause alleged

“sufficient facts . . . to indicate a crime had been committed” where the victim

reported that she was drugged, passed out, and upon regaining

consciousness, had new pain and bleeding in her vagina. See Trial Court

Opinion, 10/30/24, at 5-6. Further, Attorney Thompson attested that based

on her training and experience, she did not believe that a suppression motion

would have been successful. Id. at 6. Instead, she opined that the affidavit

contained enough evidence to support the inference that a crime had occurred

in Appellant’s hotel room. Id. at 6.

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Appellant argues that trial counsel was ineffective for refusing to file a

motion to suppress where he claims that the search warrant was issued for

evidence of rape and sexual assault, but the affidavit of probable cause did

not demonstrate that this type of criminal activity occurred. See Appellant’s

brief at 15. Appellant explains that the affidavit only stated that the victim

believed she was “drugged due to her passing out and when she woke

up . . . [she] was very groggy[,]” and that she “had pain and bleeding to her

vagina that was not there before she passed out.” Id. He contends that

“[t]here are completely normal biological functions that would explain the

discomforts that [the victim] was describing.” Id. Since the affidavit did not

state that the victim specifically asserted that she was raped or sexually

assaulted, Appellant maintains that Attorney Thompson should have filed a

motion to suppress. Id.

Our review of the certified record supports the court’s conclusion. It is

axiomatic that a warrant be supported by probable cause, which “exists

where, based upon a totality of the circumstances set forth in the affidavit of

probable cause, including the reliability and veracity of hearsay statements

included therein, there is a fair probability that evidence of a crime will be

found in a particular place.” Commonwealth v. Fletcher, 307 A.3d 742,

746 (Pa.Super. 2023) (cleaned up). Rape is classified, in pertinent part, as

follows:

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(a) Offense defined.--A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:

....

(3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring.

(4) Where the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance.

18 Pa.C.S. § 3121. Sexual assault is defined thusly: “Except as provided in

[§] 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual

intercourse), a person commits a felony of the second degree when that

person engages in sexual intercourse or deviate sexual intercourse with a

complainant without the complainant’s consent.” 18 Pa.C.S. § 3124.1.

The victim’s statement to police that she believed she had been drugged

while alone with Appellant in his hotel room, was rendered unconscious, and

awoke with unexplained injuries to her vagina, provided a reasonable

probability that police would discover evidence of rape or sexual assault at

that location, or the means of rendering the victim unconscious. See 18

Pa.C.S. § 3121(a)(3)-(4); 18 Pa.C.S. § 3124.1. Additionally, although the

affidavit did not state that the victim explicitly claimed that she was raped or

sexually assaulted, her story provided enough evidence to suggest a fair

likelihood of those crimes. See Fletcher, 307 A.3d at 746. Appellant has

therefore not met his burden to show that Attorney Thompson had no

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reasonable basis in not pursuing a motion to suppress where the warrant was

supported by probable cause. See Johnson, 139 A.3d at 1272 (stating that

counsel cannot be found to be ineffective for neglecting to raise meritless

contentions).

Overall, Appellant has not demonstrated that he suffered ineffective

assistance of trial counsel. Accordingly, we affirm the PCRA court’s order

denying his petition.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/23/2025

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