Com. v. Brake, K.

J.S23039/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

KHALID ABDUL BRAKE, :

:

Appellant :

: No. 1877 EDA 2015

Appeal from the PCRA Order June 2, 2015

in the Court of Common Pleas of Chester County Criminal Division

at No(s): CP-15-CR-00001675-2008

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 14, 2016

This matter returns after a prior panel of this Court remanded for

determinations of whether (1) Appellant, Khalid Abdul Brake, was

abandoned by counsel in his appeal from the denial of his second Post

Conviction Relief Act1 (“PCRA”) petition and (2) his third pro se PCRA petition

seeking reinstatement of that appeal was timely filed. See Commonwealth

v. Brake, 807 EDA 2014 (Pa. Super. Aug. 29, 2014) (unpublished

memorandum at 9). Appellant now appeals pro se from the order of the

Chester County Court of Common Pleas dismissing his third PCRA petition as

untimely filed. He contends (1) he is entitled to a reinstatement of his

appellate rights from the dismissal of his second, timely PCRA, (2) all prior

*

Former Justice specially assigned to the Superior Court.

1

42 Pa.C.S. §§ 9541-9546.

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PCRA counsel were ineffective, (3) his sentences for rape and statutory

sexual assault should have merged, and (4) his trial counsel was ineffective

for failing to place sidebar conference on the record and failing to bolster his

credibility at trial by asserting he conceded sexual intercourse with the

victim, but denied forcible compulsion. We affirm.

This Court previously summarized the procedural history of this

appeal.

A jury convicted Appellant on January 14, 2009, of three

counts of indecent assault[2] and one count each of rape,[3]

statutory sexual assault,[4] sexual assault,[5] and corruption

of minors.[6] On April 22, 2009, the [trial] court sentenced

Appellant to an aggregate term of eight and one-half (8½)

to twenty (20) years’ imprisonment. This Court affirmed

the judgment of sentence on November 24, 2010, and

Appellant did not seek further review with the

Pennsylvania Supreme Court.

On January 5, 2011, Appellant timely filed [a] first

PCRA petition pro se, alleging trial counsel was ineffective

for failing to have the court reporter record sidebars,

closing arguments, and jury instructions. Appellant also

claimed the court imposed an illegal sentence. The court

appointed counsel, who filed a “no-merit” letter pursuant

to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

(1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). Appellant filed a pro se

2

18 Pa.C.S. § 3126(a)(1)-(2), (8).

3

18 Pa.C.S. § 3121(a)(1).

4

18 Pa.C.S. § 3122.1.

5

18 Pa.C.S. § 3124.1.

6

18 Pa.C.S. § 6301(a)(1).

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response to the “no-merit” letter on May 6, 2011. On May

11, 2011, the [PCRA] court issued notice of its intent to

dismiss the petition without a hearing, pursuant to

Pa.R.Crim.P. 907. Appellant did not respond to the Rule

907 notice, and the court denied PCRA relief on June 6,

2011. That same day, the court permitted PCRA counsel

to withdraw. Appellant did not file a notice of appeal.

On August 12, 2011, Appellant filed a second and timely

pro se PCRA petition. In it, Appellant argued trial counsel

was ineffective for failing to present an opening statement.

Appellant also re-raised his claim regarding trial counsel’s

failure to have the court reporter record certain sidebars.

On August 24, 2011, the Commonwealth filed an answer

asserting Appellant’s issues were waived or previously

litigated. On August 30, 2011, the court issued [a] Rule

907 notice. Appellant filed a pro se response to the Rule

907 notice on September 26, 2011. On September 29,

2011, the court denied PCRA relief.

Appellant timely filed a pro se notice of appeal on

October 27, 2011. On November 16, 2011, the court

appointed counsel [Mark D. Rassman, Esq.,] to represent

Appellant on appeal. [Attorney Rassman] subsequently

filed on Appellant’s behalf a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

On January 3, 2012, [Attorney Rassman] filed a motion to

withdraw representation, which the PCRA court granted on

January 20, 2012. Prior to his withdrawal, [Attorney

Rassman] had yet to file a brief with this Court for the

pending appeal.

On April 10, 2012, this Court remanded the matter as

follows:

AND NOW, this 10th day of April, 2012, counsel

having failed to file a brief on behalf of Appellant,

despite being so ordered, this appeal is REMANDED

for 30 days for a determination as to whether

counsel has abandoned [A]ppellant and to take

further action as required to protect [A]ppellant’s

right to appeal. The [PCRA] court shall notify this

Court, in writing, within the 30-day period, of all

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findings and actions taken thereon. Jurisdiction is

retained.

(Order, entered 4/10/12, at 1). On April 27, 2012, the

PCRA court re-appointed [Attorney Rassman] and directed

him to take the necessary steps to protect Appellant’s

rights and prosecute the appeal to its conclusion.

On June 5, 2012, [Attorney Rassman] filed a motion for

remand with this Court, indicating that the PCRA court’s

Rule 1925(a) opinion did not address the issues raised in

Appellant’s counseled Rule 1925(b) statement. [Attorney

Rassman] asked this Court to remand the matter for the

PCRA court to prepare an opinion addressing the issues

raised in the counseled Rule 1925(b) statement. This

Court granted the motion and remanded the case on June

26, 2012. On August 27, 2012, the PCRA court filed a

supplemental opinion. Thereafter, [Attorney Rassman]

failed to file a brief with this Court. This Court dismissed

the appeal on December 21, 2012.

On March 3, 2014, Appellant submitted a pro se filing

styled as a “notice of appeal nunc pro tunc.” Appellant

purported to appeal from the September 29, 2011 order

dismissing his second PCRA petition. The filing did not

actually resemble a notice of appeal; rather, it included

arguments and requests for collateral relief. Specifically,

Appellant indicated, “[G]oing pro se was not his choice.

Due to this case essentially being stuck in limbo,

[A]ppellant has no choice but to go pro se.” (Pro Se Notice

of Appeal Nunc Pro Tunc, filed 3/3/14, at 1). Appellant

acknowledged the PCRA court’s April 27, 2012 order

directing [Attorney Rassman] to represent Appellant

throughout the PCRA appeal process. Appellant also

recognized [Attorney Rassman’s] June 5, 2012 motion for

remand. Appellant seemed unaware, however, of this

Court’s dismissal of his appeal . . . .

* * *

In the remainder of the filing, Appellant re-raised the

claims included in his prior PCRA petitions. Appellant also

complained that PCRA counsel abandoned him during the

prior appeal. In response to Appellant’s pro se filing, the

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PCRA court filed a Rule 1925(a) opinion on May 7, 2014,

and it forwarded the certified record to this Court on May

12, 2014.

Brake, 807 EDA 2014 at 1-5 (footnote omitted).

This Court thus regarded Appellant’s March 3, 2014 filing as a third

PCRA petition. We concluded that “a remand [was] necessary to clarify the

record and determine the status of” Attorney Rassman. Id. at 9. Further,

the Court observed that “[t]he PCRA court is in the best position to receive

and evaluate the evidence regarding the timeliness of Appellant’s current

request for PCRA relief.” Id. Accordingly, we ordered the PCRA court to

decide “whether: (1) any of the three exceptions to the time-bar of the PCRA

apply to Appellant’s case; (2) his appellate rights should be reinstated nunc

pro tunc due to counsel’s apparent abandonment; (3) and, Appellant should

have new counsel appointed or proceed pro se.” Id.

Following this Court’s remand, Appellant, again acting pro se, filed a

“petition to reinstate nunc pro tunc” on September 18, 2014. He asserted

he was abandoned by all prior PCRA counsel and restated two of his previous

claims for relief, i.e., that the trial court failed to merge rape and statutory

sexual assault and trial counsel was ineffective for failing to record sidebar

conferences.

On October 24, 2014, the PCRA court entered an order stating that it

“appear[ed] . . . that Mark D. Rassman, Esq., previously appointed PCRA

counsel has withdrawn” from representation. Order, 10/24/14, at 1. The

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court regarded Appellant’s September 18, 2014 filing as “an amendment to

his second PCRA petition” and appointed new counsel, Steve E. Jarmon,

Esq., to represent Appellant. Id. The court directed Attorney Jarmon to

determine whether (1) Appellant’s “appellate rights should be reinstated,”

(2) Appellant qualified for a PCRA time-bar exception, and (3) the issues

raised in Appellant’s September 18th filing were previously litigated. Id. at

1-2.

On December 19, 2014, Attorney Jarmon filed a petition for leave to

withdraw as PCRA counsel and a Turner/Finley letter. Appellant responded

pro se, asserting his underlying claims had merit. Notably, Attorney

Jarmon’s letter did not address the issues presented for remand. The PCRA

court, on May 1, 2015, issued a Pa.R.Crim.P. 907 notice of intent to dismiss

the petition, in which it summarized the procedures following remand and

found Appellant’s third PCRA petition untimely.

With respect to the Superior Court’s August 29, 2014

Memorandum remanding the case to the [PCRA] court, as

directed, we initially considered the need to appoint new

PCRA counsel to represent Appellant’s interests. On

October 24, 2014 we appointed [Attorney Jarmon] as

PCRA counsel to represent [Appellant]; however, on

December 19, 2014, Attorney Jarmon filed a Finley

“Petition For Leave To Withdraw As PCRA Counsel” in

which he addressed the claims advanced by [Appellant] in

his September 18, 2014 petition. Counsel did not

specifically consider Appellant’s March 3, 2014 petition,

since the claims raised there were reiterated in

[Appellant’s] September 18, 2014 petition. PCRA counsel

contemporaneously notified [Appellant] in writing that the

substantive claims raised in the latter petition were, in

counsel’s opinion, without legal merit, explained his

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reasoning, and informed [Appellant] of his intention to

withdraw as counsel. Initially, PCRA counsel did not

address the timeliness issue, but addressed the

substance of the September 18, 2014 petition. On January

3, 2015, [Appellant] filed a pro se response addressed to

Attorney Jarmon’s concerning his Finley petition, in which

[Appellant] objected to counsel’s legal conclusions and

requested counsel cite the statute(s) and/or case law

supporting counsel’s opinion. Subsequently, Attorney

Jarmon wrote to Appellant on January 26, 2015 at

the [PCRA court’s] direction, seeking information

respecting the timeliness of his September 18, 2014

PCRA petition. Appellant did not respond; however,

[Attorney] Jarmon was notified by the Pennsylvania

Disciplinary Board that Appellant had filed a claim against

him with the Board. On March 12, 2015, Attorney

[Jarmon] communicated with the undersigned and

requested that we grant his petition to withdraw.

We have also considered the issue of the timeliness of

[Appellant’s] Ma[r]ch 3, 2014 petition. The PCRA provides

the exclusive remedy for post conviction claims seeking

restoration of appellate rights due to counsel’s failure to

file necessary papers in order to maintain viable a

[Appellant’s] appeal. Unjustified failure by counsel

constitutes per se “prejudice” for purposes of the PCRA. . .

. Instantly, as a consequence of Attorney Rassman’s

failure to file an appellate brief, Appellant’s claims which

the [PCRA] court rejected in its January 20, 2012 opinion

and supplemental August 27, 2012 opinion have not been

adjudicated on appeal, even though Appellant’s second

PCRA petition was timely filed and he filed a timely appeal

from the [PCRA] court’s dismissal of his second PCRA

petition. The Superior Court’s dismissal of his appeal,

however, is problematic, in that Appellant took no action to

preserve his appellate rights until he filed his manifestly

untimely March 3, 2014 pro se petition seeking

reinstatement of his PCRA appellate rights. While

Appellant’s filings would suggest he was unaware

that his PCRA appeal had been dismissed by the

Superior Court, that information was available to

him in the Chester County Clerk of Court’s office.

Yet, Appellant appears not to have sought such

information, since he does not mention it in his

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September 18, 2014 petition or in his January 7,

2015 letter to Attorney Jarmon; nor, did he inquire

of the [PCRA] court about the status of his case. He

did not plead or attempt to prove in his March 3,

2014 petition his entitlement to an exception to the

one-year filing requirement.

* * *

. . . Following dismissal of his appeal by the Superior

Court, [Appellant] did not seek further relief until he filed

his notice of appeal seeking nunc pro tunc appellate relief

on March 3, 2014, more than 14 months after Superior

Court dismissed [Appellant’s] appeal on December 21,

2012. The question thus becomes whether the

dismissal was unknown to the [Appellant], or

whether he had a reasonable means by which to

ascertain the status of his appeal before March 3,

2014 in the exercise of due diligence. All filings

affecting [Appellant’s] case were matters of public record

in the Office of the Chester County Clerk of Courts.

Accordingly, [Appellant’s] March 3, 2014 petition,

considered as a petition seeking collateral PCRA relief, is

patently untimely because [Appellant] cannot successfully

prove that the Superior Court’s dismissal of his appeal

could not have been earlier ascertained by him by the

exercise of due diligence in order to bring himself within

the foregoing exceptions.

Considering [Appellant’s] failure to respond to

Attorney Jarmon’s inquiry seeking information on

the timeliness of his March 3, 2014 petition and

PCRA counsel’s inability to secure communication

from Appellant on this issue, and further considering

[Appellant]’s failure to address compliance with the

PCRA’s time limitations in his petition, we find his

March 3, 2014 PCRA petition to be untimely, leaving us

without jurisdiction to consider his claim or to grant relief

to allow him to appeal nunc pro tunc.

PCRA Ct. Op. 5/1/15, at 9-13 (citations omitted and emphases added).

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Appellant filed a pro se response to the PCRA court’s Pa.R.Crim.P. 907

notice, asserting he was unaware of the dismissal of his appeal until he

received a copy of our August 29, 2014 memorandum. Appellant’s Resp.,

5/21/15, at 4. He suggested that this Court’s August 29, 2014

memorandum decision recommended that he “be granted the right to appeal

nunc pro tunc” and asserted Attorney Jarmon failed to consider that

decision. Id. at 4. The remainder of Appellant’s response focused on his

merger and ineffectiveness claims.

The PCRA court, on June 2, 2015, entered the instant order dismissing

Appellant’s third PCRA petition as untimely and granted Attorney Jarmon’s

petition to withdraw from representation. Appellant timely filed a notice of

appeal. The court did not order a Pa.R.A.P. 1925(b) statement, but filed a

supplemental Pa.R.A.P. 1925(a) opinion.

Appellant, in his pro se brief, presents the following questions and

claims for review:

Whether once again Appellant’s PCRA counsel abandoned

Appellant’s right to go forward nunc pro tunc[?]

Whether the court abused its discretion to allow PCRA

counsel to withdraw, [and] not to go with the Superior

[C]ourt’s recommendat[ion] to allow Appellant to go

forward nunc pro tunc[?]

Based on testimony by the victim there is no doubt that

Appellant[’s] charges had to do with the legal

interpretation of that one act, making the sentence illegal.

Whether it was ineffective of trial counsel to waive

substantive legal matters off the record of sidebars[?]

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Whether it was ineffective of trial counsel not to allow the

[j]ury to know before Appellant took the stand, on four

charges, that Appellant claimed his innocence of charges

and was guilty of others[?]

Appellant is challenging all three counsels who were

allowed to withdraw on his PCRA, ineffective and

abandonment on all issues.

Appellant’s Brief at 6.

We summarize Appellant’s arguments as follows. First, he argues that

he was abandoned by Attorney Rassman and that a breakdown in court

operations should excuse the fourteen-month delay in seeking nunc pro tunc

relief in the appeal from the denial of his second PCRA petition. Id. at 15.

He suggests all appointed PCRA counsel were ineffective and abandoned his

appellate rights. Id. at 9. Second, he contends the trial court impermissibly

sentenced him to six and one-half to fifteen years’ imprisonment for rape

and a consecutive two to five years’ imprisonment for statutory sexual

assault based on a single criminal transaction. Id. at 16. Third, he

contends that his trial counsel’s failure to have sidebar conferences

transcribed deprived him of the ability to take a meaningful appeal. Id.

Fourth, Appellant asserts that his trial counsel was ineffective for not

bolstering his credibility that he and victim engaged in consensual sexual

intercourse by emphasizing he intended to plead guilty to, inter alia,

statutory sexual assault. Id. at 29-31. No relief is due.

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Our review of an order dismissing a PCRA petition is limited to whether

the findings of the PCRA court are supported by the record and free of legal

error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

Our standard of review over the PCRA court’s legal conclusions is de novo.

Id.

Preliminarily, we must return to the issues in the present appeal as

defined by our prior remand. See Brake, 807 EDA 2014 at 9. First, we find

no support in the record for the PCRA court’s determination that Attorney

Rassman appeared to withdraw before or after the dismissal of the appeal

from the denial of Appellant’s second PCRA petition. There is no indication

Attorney Rassman properly sought leave to withdraw or attempted to

comply with this Court’s requirement to apprise Appellant of the dismissal of

his appeal. Thus, we conclude Attorney Rassman abandoned Appellant by

failing to file a brief and failing to apprise him of the dismissal of the appeal.

Second, as to the timeliness of Appellant’s third PCRA petition,

Pennsylvania law makes clear that when “a PCRA petition

is untimely, neither this Court nor the trial court has

jurisdiction over the petition.” The “period for filing a

PCRA petition is not subject to the doctrine of equitable

tolling; instead, the time for filing a PCRA petition can be

extended only if the PCRA permits it to be extended [.]”

This is to “accord finality to the collateral review process.”

“However, an untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition,

set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are

met.”

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Miller, 102 A.3d at 992-93 (citations omitted). The abandonment by

counsel on appeal constitutes a previously unknown fact giving rise to a

claim for a timeliness exception under Section 9545(b)(1)(ii). However, the

petitioner “must also prove that the facts were ‘unknown’ to him and that he

could not uncover them with the exercise of ‘due diligence.’”

Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). Moreover,

the petitioner must plead the exception within sixty day of when it “could

have been presented.” Id. at 1272 n.11 (discussing 42 Pa.C.S. §

9545(b)(2)). Due diligence is a fact-specific inquiry, even if a matter is of

“public record.” See id. at 1274.

Instantly, the PCRA court determined that Appellant failed to establish

due diligence in discovering Attorney Rassman’s abandonment and thus

failed to plead or prove an exception to the PCRA time-bar. See 42 Pa.C.S.

§ 9545(b)(1)(ii). Appellant responded pro se to the court’s Pa.R.Crim.P. 907

notice, but failed to allege any facts suggesting he exercised due diligence.

In light of the foregoing, we have no basis to disturb the PCRA court’s

determination that Appellant’s third PCRA petition failed to plead a PCRA

time-bar exception. See Miller, 102 A.3d at 992-93.

However, the PCRA court’s appointment of Attorney Jarmon following

remand is problematic. Although there is no right to counsel on a second or

subsequent PCRA petition, the court acted within its discretion to appoint

counsel to determine the timeliness of that petition. See Pa.R.Crim.P.

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904(E); see also Brake, 807 EDA 2014 at 9 (permitting PCRA court to

appoint counsel). Subsequently, Attorney Jarmon filed a Turner/Finley

letter that failed to consider the issue of timeliness of Appellant’s third PCRA

petition, and his attorney-client relationship with Appellant broke down after

the filing of the no-merit letter. The PCRA court then permitted Attorney

Jarmon to withdraw based on a clearly deficient Turner/Finley letter,

without compliance to the court’s initial appointment order, and over

Appellant’s claims of counsel’s ineffectiveness in his response to the court’s

Pa.R.Crim.P. 907 notice.

Given the procedural irregularities following remand, we could also

remand this matter again based on the lack of meaningful representation

following the appointment of counsel to determine if Appellant’s third PCRA

petition was timely. See Commonwealth v. Jackson, 965 A.2d 280, 283

(Pa. Super. 2009); cf. Commonwealth v. Karanicolas, 836 A.2d 940, 946

(Pa. Super. 2003). We decline to do so, however, because this matter does

not involve the right to counsel in a first PCRA petition, and because a

review of Appellant’s underlying claims for relief reveals they are

procedurally barred and, in any event, frivolous on their face.

To be entitled to PCRA relief, a petitioner must establish “[t]hat the

allegation of error has not been previously litigated or waived.” 42 Pa.C.S. §

9543(a)(3). An issue is “previously litigated” when, in relevant part, “it has

been raised and decided in a proceeding collaterally attacking the conviction

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or sentence.” Id. §9544(a)(3). “[A]n issue 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.” Id. § 9544(b).

As emphasized above, the procedural posture of this appeal is limited

to Appellant’s third PCRA petition seeking reinstatement of his appeal from

the denial of his second PCRA petition. Thus, were relief granted on that

issue we would address only those claims properly presented in his second

PCRA petition. However, because Appellant’s claims that (1) his sentence

was illegal under the merger doctrine and (2) trial counsel was ineffective for

failing to transcribe the sidebar conferences were raised in his first PCRA

petition and denied by the PCRA court, they have been previously litigated

under 42 Pa.C.S. § 9544(a)(3). Further, Appellant’s claim that trial counsel

was ineffective for emphasizing that he conceded guilt to statutory sexual

assault while contesting the element of forcible compulsion for rape under 18

Pa.C.S. § 3121(a)(1) is waived for failure to raise it in his first PCRA petition.

See 42 Pa.C.S. § 9544(b). Thus, Appellant’s claims are procedurally barred.

In any event, Appellant’s claims are also frivolous. This Court has

repeatedly held that rape by forcible compulsion and statutory sexual assault

do not merge, even if they arise from a single incident. See

Commonwealth v. Jackson, 111 A.3d 1187, 1188-89 (Pa. Super. 2015),

appeal denied, 125 A.3d 1199 (Pa. 2015); Commonwealth v. Parham,

969 A.2d 629, 634 (Pa. Super. 2009). Appellant’s claim that trial counsel

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was ineffective for failing to transcribe sidebar conferences with his court

relies on sheer speculation that he suffered prejudice. Appellant’s

contention that trial counsel failed to emphasize he admitted consensual

sexual intercourse but denied forcible compulsion wholly ignores that the

jury had the benefit of his own testimony at trial to that effect.

Thus, we conclude that a remand the appointment of counsel would be

futile, cf. Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006)

(noting that “[t]he law does not require the performance of a futile act”),

and affirm the order dismissing Appellant’s third PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2016

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