The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
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.
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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
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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.
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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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