Commonwealth v. Brown

J-S28022-16

2016 PA Super 176

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD BROWN

Appellant No. 2923 EDA 2014

Appeal from the PCRA Order October 3, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0808071-2004

BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.: FILED AUGUST 12, 2016

Richard Brown appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 Because

trial counsel failed to have even one face-to-face meeting with Brown prior

to his capital trial, we are constrained to deem such conduct constitutionally 2

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

The standard of review of an order denying a PCRA petition is whether that

determination is supported by the evidence of record and is free of legal

error. The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record. Commonwealth v.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

2

The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defense.” Moreover, Article I, Section 9 of the

(Footnote Continued Next Page)

J-S28022-16

ineffective representation pursuant to Commonwealth v. Brooks, 839 A.2d

245 (Pa. 2003), as it relates to the facts of this case. Thus, we reverse and

remand for a new trial.

The trial court set forth the relevant facts of the case as follows:

Brian Prout (also identified on this record as AZ), Christopher

Smith (Smith is also identified as Jug-Head), and Vincent

Smithwick (hereinafter Smithwick or also identified as Scooter)

were paid enforcers who killed for profit at the command of

Richard Brown (also referred to as Brown, or identified as

Manny-Boo). In a conversation with Smithwick on February 7,

2003, Brown discussed his plan to kill Anthony Harris (Harris, or

the decedent), and Richard Powell (Harris's [sic] best friend;

hereinafter Powell). Brown specifically told Smithwick, ‘we goin'

to grab Harris.’ After finalizing the plan, Brown[,] Smithwick,

Prout, and Smith got into Brown's car to set out to find Harris.

Brown arrived at the home of Tonya Brister and Frank Tompkins

at 3911 Fairmount Avenue in the City and County of

Philadelphia. He arrived at the house unannounced dressed in

all black and wearing black gloves. Brown talked with Tiesha

Brister, Tonya’s sister while three (3) to four (4) other males

waited outside. After a few minutes, Brown left the house and

Tiesha quickly closed and locked the door behind him. Later,

Powell was approached by Brown on the street who told him, “I

need you to take a ride with me.” Powell stated he couldn't

because he had to pick up his wife. Powell also spoke with

Smith, who at the time was wearing a bulletproof vest. Powell

later saw Harris and asked him if he had plans for the night.

Harris said he was going to Little Frank's house [to] smoke

_______________________

(Footnote Continued)

Pennsylvania Constitution provides in relevant part that “[i]n all criminal

prosecutions the accused hath a right to be heard by himself and his

counsel[.]” The Pennsylvania Supreme Court has held that with respect to

the right to counsel, Article I, Section 9 provides the same level of protection

to criminal defendants as does the Sixth Amendment. See Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987).

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weed. Powell warned Harris to be careful. When Harris arrived at

Tonya's he was informed that Brown had been by the house

earlier asking questions. Frank Tompkins (Tonya's boyfriend);

Ronnie-Ron (Harris’ cousin), Tonya, Tiesha, and Harris went

upstairs to a second floor bedroom to smoke marijuana and

watch television. A few moments later, someone knocked on the

front door downstairs. One of the younger children in the house

yelled up to Harris to come to the door. After speaking with the

visitor, he returned upstairs. Someone knocked on the door a

second time, again asking for Harris, this time he remained

downstairs for about fifteen (15) minutes. Harris returned to the

bedroom and began pacing by the window. Harris turned to the

others in the bedroom and said, “I'll be back, don't smoke my

weed.” Harris threw his hat on the bed and said, “If my girl

calls, tell her you got my phone, I went to the store.” At

approximately 9:30 pm, Harris left his coat, cell phone, hat,

and walked out the front door.

A short while later, Smith drove Harris to see Brown. Before

Harris could exit the car, Prout tapped his AK-47 on Harris’s [sic]

window, and told him to get out. When Harris got out and

attempted to run, Prout shot him. Harris, still conscious, was

lifted into the back seat of a red Taurus wagon driven by

Smithwick. Hyneith Jacobs (identified on this record as Neef-

Buck or Jacobs) was across the street at the time and saw Prout

shoot Harris. Brown saw Jacobs and threatened him to ensure

that he did not [] talk to the police. Not willing to take any

chances on disclosure, Brown forced him to ride along and

participate in disposing of Harris’s [sic] body.

Smithwick drove the wagon with Smith and Prout, while Harris

sat bleeding in the back seat. Smickwick [sic] followed Brown

who was driving a gold Impala sedan. While in the back seat,

Harris was asked by Smith and Prout if he attempted to have

Brown killed, which he denied. Prout and Smith removed Harris'

jewelry, watch, and $1,000 cash from him. The men drove to an

agreed upon location down by the Schuylkill river. Brown told

Smithwick, “put [Harris] to sleep.” Brown handed Smithwick a

pair of black athletic gloves, and Smithwick shot Harris once in

the forehead with a .357 handgun. Anthony Petty (identified on

this record as Stutter-Ant) who had been in the car with Brown,

began tying Harris' body with rope and bricks along with Prout.

Smith[,] Prout, and Jacobs drug [sic] Harris through the snow to

the river's edge, then dumped his body into the river. The men

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th

got into the cars and drove to 76 and Elmwood Streets in the

City and County of Philadelphia. Once there [PettyL] Prout, and

Smithwick met BrownL] Jacobs, Jawayne Brown/ Maurice Brown

and Fat-Mark to eat and hang out.

Jack Darrah, a CSX employee and eyewitness, saw two vehicles/

a station wagon and a sedan, parked off Wharton and Schuylkill

Avenue in the City and County of Philadelphia after midnight. He

saw four (4) males dragging a body towards the river's edge.

Police then received a radio call for “males dumping a body into

th

the river.” Police arrived at a salt factory located at 1500 37

Street in the City and County of Philadelphia. Drag marks were

discovered in the snow leading to the river's edge. A trail of

fresh blood led down to the river’s edge. Numerous footprints

were found surrounding the path of blood. As police approached

the bank of the river they discovered a body floating upside

down in the water. The police Marine Unit was summoned and

retrieved Harris’s [sic] body from the water. The police

recovered one (1) .357 fired cartridge at the scene, as well as

one Timberland boot, and multiple layers of crinkled duct tape

formed into large circles approximately one (1) foot wide. A

Motorola pager was also recovered but its owner could not be

determined due to the excessive wear, scratch marks/and blood

on its face. The next day all of Anthony Harris' jewelry and

watch were sold by Smithwick and Smith on the street and they

shared in the profit. Vincent Smithwick was arrested on March

25, 2003. Christopher Smith was stopped by police on April

th

13, 2003 at 6 and Spring Garden Streets, and a black semi-

automatic handgun was confiscated from his possession.

Richard Brown and Brian Prout were arrested on May 19,

2003, at the Lincoln Greene Apartments. Two (2) handguns,

a full magazine clip for a .45 handgun, and two (2) bulletproof

vests were recovered from that location. Ballistics evidence

collected at the location where Anthony Harris was killed, as

well as recovered from Harris's [sic] body, matched the guns

that were recovered from the apartment.

Trial Court Opinion, 7/19/07 at 1-6. (footnotes omitted).

In April 2004, June 2004, and December 2004, the court sent Nino

Tinari, Esquire, notices indicating that he had been appointed to represent

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Brown and attached for trial in Brown’s case as his court-appointed attorney.

Four months prior to trial, Brown privately retained new counsel, Jack

McMahon, Esquire. Attorney McMahon, however, was unable to proceed to

trial on the trial date due to “issues that he c[ould not] control.” 3 As a

result, the court ordered Tinari to represent Brown at trial.4 In July 2005,

Brown5 was tried by a jury before the Honorable Renee Cardwell Hughes.

After the jury returned its verdict,6 Brown was sentenced to life

imprisonment.7 Brown filed a timely direct appeal. Our Court affirmed his

judgment of sentence. See Commonwealth v. Brown, 974 A.2d 1177

(Pa. Super. 2009) (unpublished memorandum). The Supreme Court

____________________________________________

3

N.T. Pretrial Discussions, 6/28/05, at 9. In fact, his sister had just died

and he needed to take care of the out-of-town funeral arrangements.

4

Voir dire began on June 30, 2005.

5

Brown, Prout and Smith were tried jointly as co-defendants. Judge Hughes

retired from the bench on June 3, 2011.

6

Brown was also convicted of robbery, kidnapping, criminal conspiracy and

carrying a firearm without a license. He was sentenced on those charges,

respectively, as follows: 10-20 years’ imprisonment; 10-20 years’

imprisonment; 10-20 years’ imprisonment; and 3½-7 years’ imprisonment.

The conspiracy sentence was ordered to run consecutively to his murder

sentence, and the remaining sentences ran concurrently with his murder

sentence.

7

Brown was not represented by Attorney Tinari at sentencing. Rather,

Attorney McMahon represented him at the penalty phase where the jury did

not find aggravating circumstances to support imposition of the death

penalty.

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subsequently denied Brown’s petition for allowance of appeal on October 1,

2009. Commonwealth v. Brown, 980 A.2d 604 (Pa. 2009).

On March 19, 2010, Brown timely filed the instant pro se PCRA

petition. The PCRA court appointed Teri B. Himebaugh, Esquire 8 who later

filed an amended petition. On July 22, 2013, the Honorable M. Teresa

Sarmina held an evidentiary hearing on Brown’s PCRA petition, limited to the

following issues: (1) whether trial counsel was ineffective for failing to

obtain exculpatory information disclosed by Commonwealth witness Vincent

Smithwick to federal authorities during proffer sessions, and (2) whether

trial counsel was ineffective for failing to meet with the petitioner prior to

trial. Trial counsel, the trial prosecutor, and Brown testified at the hearing.

On July 29, 2013, Brown filed a motion for PCRA discovery, within

which he requested his prison visitation logs. However, before the motion

was ruled upon, counsel requested and the court granted PCRA counsel

leave to withdraw. Newly-retained counsel, Paul George, Esquire, entered

his appearance and filed a motion to reopen the record to present Brown’s

prison visitation logs. The court granted Brown’s motion and, at an

additional hearing on November 25, 2013, received the evidence from the

recovered logs. On January 13, 2014, the PCRA court issued its

Pa.R.Crim.P. 907 notice of intent to dismiss Brown’s petition. In response,

____________________________________________

8

On June 19, 2012, Himebaugh filed a motion for leave to amend Brown’s

PCRA petition, which she later filed on October 26, 2012.

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Brown requested permission to amend his PCRA petition to include two

additional claims of trial counsel’s ineffectiveness and, again, asked the court

to open the record. On March 7, 2014, the court heard oral argument on

whether counsel was ineffective for failing to call character witnesses. On

June 20, 2014, the PCRA court held an evidentiary hearing at which Brown

presented character witness testimony that he would have presented at trial

had he been given the opportunity.9 The Commonwealth presented rebuttal

testimony at that hearing as well. On October 2, 2014, in open court, the

PCRA court dismissed Brown’s petition, finding that he did not meet his

burden to prove the ineffectiveness claims.10 This timely appeal follows.

On appeal, Brown presents the following issues for our review:

____________________________________________

9

Although the court did not formally grant Brown leave to amend his

petition to include these additional ineffectiveness claims, Brown did file a

consolidated petition to reopen the record to amend his petition as well as

an amended petition raising these claims. Cf. Commonwealth v. Elliott,

80 A.3d 415 (Pa. 2013) (additional PCRA claims waived on appeal where

petitioner failed to raise new claims in original PCRA petition or counsel’s

amended petition; interjecting claims in supplemental brief not sufficient to

amend petition to include claims). Moreover, the fact that the court held a

Rule 908 evidentiary hearing specifically on those claims allows us to infer

that it implicitly granted Brown the right to raise the claims. Therefore, we

find them properly preserved. See Pa.R.Crim.P. 905.

10

See Strickland v. Washington, 466 U.S. 668 (1984) (setting forth

three-prong test for ineffectiveness claims); see also Commonwealth v.

Spotz, 47 A.3d 63, 76 (Pa. 2012) (to prevail on ineffectiveness claim,

petitioner must plead and prove, by preponderance of evidence that (1)

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for action or inaction; and (3) petitioner suffered prejudice because of

counsel’s action or inaction).

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(1) Did the PCRA court erroneously deny [Brown’s] petition

where court-appointed counsel never visited or consulted

with [Brown] before or during his capital trial?

(2) Did trial counsel provide ineffective assistance where,

because of his failure to consult with his capitally charged

client, counsel failed to investigate and present character

testimony and failed to investigate and object to the

Commonwealth’s inadmissible negative character

witnesses?

(3) Should [Brown] be awarded a new trial based on after-

discovered evidence, where key Commonwealth witness

Hyneith Jacobs has admitted giving intentionally false

testimony to deflect blame from himself?

(4) Did the PCRA court erroneously deny an evidentiary

hearing regarding the proposed testimony of Edith Bond, a

witness who observed a key portion of the incident and

whose testimony exculpated Richard Brown?

(5) Did trial counsel provide ineffective assistance in litigating

an oral, mid-trial, boilerplate motion to suppress physical

evidence, and, to the extent that trial counsel preserved

[Brown’s] suppression claim, was direct appeal counsel

ineffective for failing to litigate this issue on appeal?

(6) Did trial counsel provide ineffective assistance where he

failed to request a jury instruction regarding other crimes

evidence and failed to object to the trial court’s failure to

give such an instruction?

(7) Did trial counsel provide ineffective assistance where he

failed to obtain critical discovery relating to the

Commonwealth’s star witness Vincent Smithwick?

Because we find this issue dispositive of the instant appeal, we first

address Brown’s claim that trial counsel was ineffective where he “never

visited or consulted with [him] before or during his capital trial.” Appellant’s

Brief at 36.

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The seminal case on this issue was decided by our Supreme Court in

2003. In Commonwealth v. Brooks, supra, the defendant, who chose to

proceed pro se during his murder trial, raised a claim of stand-by counsel’s

ineffectiveness for failing to meet with him at any point prior to trial. In his

capital direct appeal, our Supreme Court reversed the defendant’s first-

degree murder conviction and verdict of death, stating:

As this testimony makes clear, [counsel] never once met with

[the defendant] in person before his trial on capital charges. In

fact, [counsel] testified that he could only specifically recall one

telephone conversation with [defendant], and that conversation

lasted just twenty minutes to one-half hour. It should go

without saying that no lawyer, no matter how talented and

efficient, can possibly forge a meaningful relationship with his

client and obtain adequate information to defend that client

against first-degree murder charges in a single thirty-minute

telephone conversation. Although a lawyer can always learn

certain information from his client over the telephone, we simply

would be discounting the gravity of a death penalty case were

we to say that a lawyer representing a defendant in such a case

has done his job effectively when he has spent only limited time

on the telephone with his client. Indeed, the very nature of a

capital case, typically quite involved and always

subjecting the defendant to the possibility of death,

clearly necessitates at least one in-person meeting

between a lawyer and his client before trial begins.

Without such a meeting, there is little to no hope that the

client will develop a fundamental base of communication

with his attorney, such that the client will freely share

important information and work comfortably with the

lawyer in developing a defense plan. Moreover, only a

face-to-face meeting allows an attorney to assess the

client’s demeanor, credibility, and the overall impression

he might have on a jury. This is of particular importance in

cases in which the client may take the stand in his defense or at

the penalty phase in an attempt to establish the existence of

particular mitigating circumstances. As Appellant was deprived

of the benefits of a face-to-face meeting here, it is clear that

Appellant’s ineffectiveness claim has arguable merit. See

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[Commonwealth v.] Douglas, 737 A.2d [1188,] 1199 [Pa.

1999].

Id. at 249 (emphasis added).11 Brooks essentially announced the minimum

action required by counsel to provide what is deemed constitutionally

effective representation in capital cases: counsel must conduct at least one

face-to-face meeting with his client.

More recently, in Commonwealth v. Johnson, 51 A.3d 237 (Pa.

Super. 2012) (en banc), the defendant, who was also convicted of first-

degree murder and sentenced to life in prison, argued on collateral appeal

that trial counsel was ineffective where he failed to have a face-to-face

meeting with him until the eve of trial. The majority determined that where

counsel had a last minute meeting with Johnson on the eve of trial, a face-

____________________________________________

11

In Commonwealth v. Britt, 83 A.3d 198 (Pa. Super. 2013), a three-

judge panel of this Court affirmed a defendant’s conviction for first-degree

murder and his sentence of life imprisonment. In that case, the defendant

contended on direct appeal that counsel was per se ineffective for failing to

“establish a relationship with him, interview him, keep him informed, take

prompt action to protect his rights, or investigate this matter.” Id. at 201.

The defendant, relying on Brooks, supra, argued that the trial court failed

to protect his rights when it neglected to conduct any inquiry into trial

counsel’s readiness for trial. Id. at 202. However, ultimately we found that

because Britt’s claims were non-record based and because he had not

waived PCRA review, he could not seek review of his ineffectiveness claims

on direct appeal but must have them deferred to PCRA review. Id. at 204,

citing Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Thus, we find

that any discussion regarding Brooks is dicta, and, therefore, neither

binding nor relevant to our resolution of the instant case. Moreover, we

distinguish the facts in Britt where counsel “had met with Appellant well

before trial,” id. at 205, from the instant case where there is no evidence

that Tinari ever met with Brown.

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to-face meeting with the defendant at his preliminary hearing, and a phone

consultation with his client, he was not per se ineffective. Essentially, the

Court found that counsel’s limited pretrial contact with his client was entirely

distinguishable from the attorney in Brooks who “failed to meet with his

client ‘at all.’” Id. at 243.12 While our Court acknowledged that additional

pre-trial attorney-client contact “may have been advisable,” it declined to

read Brooks in a way that would prevent it from analyzing the substantive

impact that counsel had on the defendant’s trial strategy. Id. at 243-44.

Subsequently, our Supreme Court revisited the Brooks issue in

Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013). In that case the

Supreme Court was faced with determining whether capital trial counsel was

ineffective for “completely fail[ing] to communicate with [the defendant] in

preparation for trial.” Id. at 425. The Court determined that Elliott would

not be entitled to relief under Brooks because the defendant neither sought

____________________________________________

12

The concurrence in Johnson, authored by the Honorable David N. Wecht,

which was also joined by the Honorable Mary Jane Bowes, astutely points

out that not only must capital defense counsel meet face-to-face with his

client at least once before trial, but that that consultation must be truly

substantive. Johnson, 51 A.3d at 250, 252 (Wecht, J., concurring)

(“Brooks[’] core premise is that at least one in-person meeting is necessary

effectively to represent a defendant facing a first-degree murder trial. The

meeting is not optional [and] cannot be an afterthought or a token visit

made only to comply with the bare minimum standard.”). Here, where we

have no evidence of even one face-to-face meeting between Brown and

Attorney Tinari prior to trial, an analysis of counsel’s contact is not dictated

by the holding of Brooks.

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permission to amend his later petition to include reference to Brooks and

the precise issue of counsel’s ineffectiveness, nor had Brooks been decided

prior to Elliott’s appeal. Id. at 431. However, in coming to its conclusion,

the Court noted that:

It is clear that a majority of this Court in Brooks expressly

required that counsel representing a defendant in a capital

murder trial conduct a substantive, face-to-face consultation

with the defendant prior to trial, and held that a failure to do so

amounted to ineffectiveness of counsel warranting the grant of a

new trial.

Id. The Court also made an important distinction between the analysis of

failure-to-consult ineffectiveness claims pre- and post-Brooks. Specifically,

prior to Brooks our courts had declined to evaluate such ineffectiveness

claims based solely upon the existence or duration of counsel’s pretrial face-

to-face consultation with the defendant. Id.

Instantly, at the PCRA hearing, both Brown and Attorney Tinari

testified that Attorney Tinari was present for Brown’s preliminary hearing

and conducted pre-trial discovery on his behalf. However, Attorney Tinari

had no specific recollection of ever having met with Brown face-to-face to

talk to him about the substance of his case or ever having spoken with him

over the phone prior to trial. N.T. PCRA Hearing, 7/22/13, at 21. Attorney

Tinari testified that he recalled having reviewed all pre-trial discovery at

some point and having visited the site of the shooting. Id. at 17. But,

counsel could not say whether his actions were for the preliminary hearing

or for the trial of Brown’s capital case.

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Brown testified at the hearing that he never met face-to-face with

Attorney Tinari prior to trial.13 Id. at 56. Brown acknowledged that

Attorney Tinari was present for his preliminary hearing, but he stated that

Attorney Tinari never spoke to him about the case before, during or after the

preliminary hearing and that immediately following the Commonwealth’s

witness testimony, “[Attorney Tinari] asked to be excused from the

Preliminary Hearing.” Id. at 57. The next time Brown saw Attorney Tinari

was at his trial. Id. Brown also testified that he tried to call Attorney Tinari

several times prior to trial while he was incarcerated, but he never was able

to speak with him. Id. at 57-58.14

Significantly, on June 28, 2005,15 prior to trial, the trial judge had an

on-the-record conversation with Brown and the attorneys involved in the

____________________________________________

13

Brown admitted several prisoner visitors’ logs dating from September

2004 to his trial in July 2005, none of which listed Tinari as a visitor and the

Commonwealth did not offer any testimony to the contrary.

14

Brown also testified that had Attorney Tinari met with him prior to trial he

would have given Attorney Tinari the names of several eyewitnesses and

alibi and character witnesses names. Brown also would have asked Tinari to

challenge the information provided by the confidential informant involved in

the case, which led to the issuance of the search warrant for the apartment

where they uncovered physical evidence linking the crime to Brown. Id. at

59. While Brown may have raised these potential areas to investigate, they

also by no means replace an informed attorney’s analysis of possible

defenses and trial strategies.

15

Brown has been unable to obtain notes from a June 27, 2005 conversation

between Attorney McMahon and Judge Hughes. He alleges that the

conversation may never have been transcribed.

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case regarding Brown’s privately retained counsel, Attorney McMahon. The

court noted that Attorney McMahon had “very legitimate reasons” for not

being able to honor the scheduled trial date,16 and because of those reasons

____________________________________________

16

Although not raised in the current appeal, in his amended PCRA petition

Brown argued that trial counsel was ineffective for failing to raise the claim

that he was denied his right to counsel of choice. See Amended PCRA

Petition, 10/26/12, at 51. Specifically, Brown averred that he paid Attorney

McMahon $10,000 in April 2005 to retain his services for trial. The record

contains a Pa.R.A.P. 1923 motion filed by Brown in which he recreates the

discourse between Attorney McMahon and Judge Hughes during counsel’s

request for a continuance due to the death of his sister and his responsibility

to arrange her out-of-town funeral. According to Brown, Judge Hughes

denied counsel’s continuance request, and informed counsel that if he

entered his appearance he would be starting trial on that date. Pa.R.A.P.

1923 Motion, 10/26/12, at 2. While the court never entered a formal order

denying Brown’s Rule 1923 motion, it implicitly did so by omitting the issue

from being included at his PCRA evidentiary hearing.

As we have already recognized, an accused has the constitutional right

to counsel. See supra note 2. The right to choose his or her own counsel,

however, must be weighed against, and may reasonably be restricted by,

the state’s interest in the swift and efficient administration of criminal

justice. Commonwealth v. Randolph, 873 A.2d 1277, 1282 (Pa. 2005).

Here, Brown privately retained Attorney McMahon to represent him at his

capital trial. Brown did nothing to intentionally delay the start of trial. Cf.

Commonwealth v. Travillion, 17 A.3d 1247 (Pa. 2011); Commonwealth

v. Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009); Commonwealth v. Kelly, 5

A.3d 370 (Pa. Super. 2010). Under the particular circumstances where

retained counsel’s sister had passed away and Brown had been developing a

defense strategy with counsel in his capital case for months, we believe that

the court abused its discretion in denying Attorney McMahon’s first and only

record request for a continuance to give him additional time to prepare for

trial. This is especially so where the court failed to conduct any balancing

test to determine whether “the swift administration of justice would be

vitiated by granting [counsel’s] continuance,” Commonwealth v. Prysock,

972 A.2d 539, 544 (Pa. Super. 2009), or even inquire as to when counsel

would be able to proceed to trial, and consider severing his case from that of

his co-defendants. See Commonwealth v. McAleer, 748 A.2d 670, 674

(Pa. 2000) (“a myopic insistence upon expeditiousness in the face of a

(Footnote Continued Next Page)

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he had never entered his appearance in the case. N.T. Pretrial Discussions,

6/28/05, at 5-6. During the discussion, Brown told the trial judge that

Attorney Tinari had never come to see him the entire time prior to trial and

that Attorney Tinari did not know his case. Id. at 8-9, 10. Despite his

legitimate concerns involving a life-or-death matter, the court informed

Brown that “he had created this problem for himself” by having talked to

Attorney McMahon months prior which “create[d] in Mr. Tinari’s mind a

situation to believe that you and Mr. McMahon might work this out, but you

didn’t.” Id. at 9-10.17 After assuring Brown that Attorney Tinari “kn[ew] his

case” and was “one of the most successful attorneys in the Commonwealth,”

the trial judge told Brown “we’re going to trial.” Id. This is not a case of

whether Attorney Tinari was competent to try this matter. But rather, where

Brown had retained his own counsel and developed a rapport with same,

forcing appointed counsel who had not met with Brown even once before

_______________________

(Footnote Continued)

justifiable request for delay can render the right to defend with counsel an

empty formality.”) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964));

see also Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (where

defendant faced first-degree murder charges for which Commonwealth

sought death penalty, court manifestly abused its discretion in denying

multiple motions for continuance in weeks prior to start of trial; trial court

should pay careful attention to nature of crimes at issue and level of

intricacy of evidence to be presented by parties when ruling on continuance

motion).

17

We find the trial court’s reasoning faulty where there is no way that

Attorney McMahon or Brown could have predicted that counsel’s sister would

pass away on the eve of trial, necessitating a continuance.

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trial was an abuse of discretion and forced appointed counsel to be

ineffective by court fiat.

As the court pointed out at the PCRA hearing, at the close of the

Commonwealth’s case the trial judge asked Brown whether he was going to

present evidence in the matter, to which Brown replied that he would not

testify. N.T. Trial (Jury), 7/19/05, at 67-68. Brown stated that while he had

consulted with counsel regarding whether he should take the stand, it was

his decision not to testify. Id. at 68 (“Is it your decision and yours alone

after seeking [counsel’s] advice?” “My decision.”). Moreover, when the

court asked Brown if he was satisfied with Attorney Tinari’s representation,

Brown responded, “I[’ll] tell you after closing arguments.” Id. at 69. In

response, the trial judge told Brown that he had to tell her now. Brown

responded, “Yes.” Id.

While it could be argued that Brown’s admission of adequate

representation near the end of trial waives his claim on appeal, we do not

find that Brown’s answer defeats his ineffectiveness claim. As Brown

acknowledged at the PCRA hearing, he felt as though when he was asked

the question, the trial judge was “kind of putting him in a situation also, so –

yes, I just answered. I just said yes.” N.T. PCRA Hearing, 7/22/13, at 85.

Moreover, Brown’s impression that he felt coerced to answer “yes” to the

question is further supported by the court’s actions at the June 28, 2005

pretrial proceeding where the court gave him no option but to proceed with

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Attorney Tinari as his trial counsel without fully considering his claim that he

had never met with counsel prior to trial.

Finally, despite the trial judge’s opinion that Attorney Tinari was “one

of the most successful attorneys in the Commonwealth,” N.T. Pretrial

Discussions, 6/28/05, at 9, in Brooks our Supreme Court held that “no

lawyer, no matter how talented and efficient, can possibly forge a

meaningful relationship with his client and obtain adequate information to

defend that client against first-degree murder charges in a single thirty-

minute telephone conversation.” Brooks, supra at 249. Here, Brown and

Attorney Tinari did not even have the limited thirty-minute phone

conversation which was afforded the defendant in Brooks. In fact, to the

contrary, the record contains no evidence that they had any consultation or

conversation about the case prior to the start of trial or had ever met before

in an unrelated case or matter other than during the preliminary hearing in

the instant case. Cf. Elliott, supra (distinguishing facts of Brooks where

defendant had met with counsel in four, unrelated criminal cases and was

familiar with and had working relationship with him).

Under such circumstances, it is clear that Brown’s ineffectiveness claim

has arguable merit. Brooks, supra at 249. Counsel offered no

explanation, let alone a reasonable one, as to why he failed to meet with

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Brown prior to trial or return any of his phone calls.18 Id. at 250. Moreover,

even if Attorney Tinari competently represented Brown at trial, one’s

constitutional right to the assistance of counsel also includes meeting with a

defendant prior to trial because “in order to prepare a defense to a charge of

murder in the first degree, it is essential that at the very least, counsel meet

with his client in person to, inter alia, gather information from the client,

evaluate the client’s demeanor, and try to establish a working

relationship.”19 Id. Under such circumstances, Brown was prejudiced by

counsel’s failure to meet with him in person prior to trial. Id.

Finally, the trial court and the Commonwealth assert that because

Brown suffered no prejudice due to the overwhelming evidence of guilt

presented at trial, he is not entitled to relief under the Strickland

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18

The obvious inference from the record is that once Attorney McMahon was

retained, counsel did not believe that he had any further responsibility.

However, there is no valid reason why Attorney Tinari had not met with his

client even once in the eleven months before Brown hired Attorney

McMahon.

19

The Commonwealth claims that because Brown did not receive the death

penalty, like the defendant in Brooks, he was not prejudiced. Appellee’s

Brief, at 18. However, Brooks does not limit its holding to whether a first-

degree murder defendant ultimately receives a sentence of life imprisonment

or the death penalty. Rather, the Court states that “the very nature of a

capital case, typically quite involved and always subjecting the defendant to

the possibility of death, clearly necessitates at least one in-person meeting

between a lawyer and a client before trial begins.” Brooks, supra at 249;

Id. at 250 (“In order to prepare a defense to a charge of murder in the first

degree, it is essential that at the very least, counsel meet with his client in

person[.]”).

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ineffectiveness test. However, we remind the trial court and the

Commonwealth that while Brooks did cite to the three-pronged Strickland

ineffectiveness test, the Court concluded that “an attorney who does not

meet in person with his client at all prior to a capital trial simply cannot be

deemed sufficiently prepared to defend his client’s life.” Brooks, supra at

250 n.7 (emphasis added). With this precept in mind, the Brooks Court

presumed that the defendant was prejudiced because “a defense to the

charge of murder in the first degree” was not able to be prepared where

counsel had never met with his client prior to trial. Id. at 250. See Elliott,

supra at 431 (“Brooks expressly required that counsel representing a

defendant in a capital murder trial conduct a substantive, face-to-face

consultation with the defendant prior to trial, and held that a failure to do so

amounted to ineffectiveness of counsel warranting the grant of a new

trial.”).20 Indeed, the failure to meet with Brown and not to be aware of

potential character and fact witnesses belies the Commonwealth’s and trial

court’s position.

Instantly, we cannot affirm the trial court’s decision to proceed with a

capital murder trial when counsel, albeit reputable and competent, never

had any in-person consultation with his client to determine an adequate

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20

See Elliott, supra at 451 (Castille, J., concurring) (“[T]he Brooks

majority had established a bright-line rule that failure to meet with a client

face-to-face established ineffectiveness per se.”).

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defense, learn of any potential witnesses or develop any trial strategy.

Accordingly, we find that Brown was denied effective assistance of counsel,21

Brooks, supra, and reverse the order denying Brown PCRA relief and

remand for a new trial. Johnston, supra.

Order reversed. Case remanded for a new trial. Jurisdiction

relinquished.22

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2016

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21

The Commonwealth contends in its brief that Brown “admitted he had not

been willing to cooperate with appointed counsel” when he failed to tell

Attorney Tinari about a potential alibi on the eve of trial or did not discuss

witnesses with him on the first day of trial. Appellee’s Brief, at 15.

However, we remind the Commonwealth that Brown is entitled to

constitutionally-based effective representation and that the duty to consult is

placed on counsel, not his client.

22

Having reversed the PCRA court and remanded for a new trial, we need

not reach the remaining issues raised on appeal.

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