Com. v. Brown, J.

J-S89029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES BROWN

Appellant No. 3193 EDA 2015

Appeal from the Judgment of Sentence October 8, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014684-2012

BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.: FILED FEBRUARY 10, 2017

James Brown appeals from the October 8, 2015 judgment of sentence

entered in the Philadelphia County Court of Common Pleas. We affirm the

judgment of sentence and dismiss Brown’s ineffective assistance of counsel

claims without prejudice.

The trial court1 set forth a procedural history of this matter as follows:

On October 1, 2012, [Brown] was arrested and

charged with murder and related offenses in connection

with the fatal shooting of decedent, Kenneth Butts.

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*

Former Justice specially assigned to the Superior Court.

1

The Honorable Lillian Harris Ransom presided over Brown’s trial.

Judge Ransom was sworn in as a member of this Court in August 2016,

following her appointment to the Court in June 2016. Judge Ransom was

not involved in the review of this appeal.

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On July 6, 2015, following a jury trial before this

Court, [Brown] was convicted of Third Degree Murder and

violating §§ 6106 and 6108 of the Uniform Firearms Act. [2]

He was adjudged not guilty of Possessing an Instrument of

Crime.[3] [Brown]’s sentencing hearing was deferred until

October 10, 2015, at which time the Court sentenced

[Brown] to concurrent prison terms of twenty (20) to forty

(40) years on the Murder bill and 6106 bill. No further

penalty was imposed on the remaining bill. This timely

appeal followed.

Opinion, 2/29/16, at 1-2 (“1925(a) Op.”).

On October 22, 2015, Brown filed a timely notice of appeal. On

October 26, 2015, the trial court ordered Brown to file and serve a

statement of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(b).4 On November 5, 2015, Brown filed a

motion requesting leave to file post-sentence motions nunc pro tunc. On

November 13, 2015, Brown filed a petition for extension of time to file his

Rule 1925(b) statement, requesting a 30-day extension so that the trial

court could rule on his pending motion. On November 16, 2015, Brown filed

his Rule 1925(b) statement. On November 17, 2015, the trial court denied

Brown’s motion to file post-sentence motions nunc pro tunc, specifically

ordering that Brown was not permitted to file post-sentence motions alleging

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2

18 Pa.C.S. §§ 2502(c), 6016(a)(1), and 6108, respectively.

3

18 Pa.C.S. § 907(a).

4

That same day, the trial court permitted Brown’s trial counsel to

withdraw. The trial court appointed appellate counsel for Brown on

November 4, 2015.

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ineffectiveness of trial counsel. The trial court prepared an opinion pursuant

to Rule 1925(a). Brown raises three issues on appeal:5

A. Was trial counsel ineffective for failing to object and

request a mistrial when the prosecutor improperly

commented during trial and in closing argument on his

post-arrest invocation of his right to counsel?

B. Was trial counsel ineffective for failing to object to the

introduction of other crimes evidence regarding

defendant’s two prior arrests for firearms charges?

C. Was trial counsel ineffective for failing to request a

cautionary instruction with respect to the above-mentioned

other crimes evidence as required by Commonwealth v.

Billa, 555 A.2d 835 (Pa. 1999)?

Brown’s Br. at 3 (answers below omitted).

Brown asserts three claims of ineffective assistance of trial counsel.

Brown’s Br. at 11-13. However, before we address the merits of Brown’s

ineffectiveness claims, we must address whether his claims are properly

before this Court.

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5

In his Rule 1925(b) statement, Brown also raised two substantive

claims related to his first two ineffectiveness claims: (1) he was entitled to a

new trial based on the prosecutor’s alleged improper remarks on his post-

arrest invocation of his right to counsel; and (2) the trial court erred in

permitting the introduction of Brown’s two prior firearms charges. However,

Brown has abandoned these matters on appeal to this Court, as he neither

presented them in his statement of questions presented on appeal nor

argued them in his brief. See Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”); Commonwealth v. Dunphy, 20 A.3d 1215,

1218 (Pa.Super. 2011) (concluding that questions presented in appellant’s

concise statement but not subsequently developed in his brief are

abandoned).

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In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), “[o]ur

Supreme Court determined that, absent certain circumstances, ‘claims of

ineffective assistance of counsel are to be deferred to [Post Conviction Relief

Act (“PCRA”)] review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal.’” Commonwealth v. Harris, 114 A.3d 1, 5

(Pa.Super. 2015) (quoting Holmes, 79 A.3d at 576); see also

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“[A]s a general

rule, a petitioner should wait to raise claims of ineffective assistance of trial

counsel until collateral review.”). The Holmes Court recognized two

exceptions to this general rule:

We recognize two exceptions [to the general rule] both

falling within the discretion of the trial judge. First, we

appreciate that there may be extraordinary circumstances

where a discrete claim (or claims) of trial counsel

ineffectiveness is apparent from the record and meritorious

to the extent that immediate consideration best serves the

interests of justice; and we hold that trial courts retain

their discretion to entertain such claims.

Second, with respect to other cases and claims . . . where

the defendant seeks to litigate multiple or prolix claims of

counsel ineffectiveness, including non-record-based claims,

on post-verdict motions and direct appeal, we repose

discretion in the trial courts to entertain such claims, but

only if (1) there is good cause shown,1 and (2) the unitary

review so indulged is preceded by the defendant’s knowing

and express waiver of his entitlement to seek PCRA review

from his conviction and sentence, including an express

recognition that the waiver subjects further collateral

review to the time and serial petition restrictions of the

PCRA.2 In other words, we adopt a paradigm whereby

unitary review may be available in such cases only to the

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extent that it advances (and exhausts) PCRA review in

time; unlike the so-called [Commonwealth v. Bomar,

826 A.2d 831 (Pa. 2003)] exception, unitary review would

not be made available as an accelerated, extra round of

collateral attack as of right. This exception follows from

the suggestions of prior Court majorities respecting review

of prolix claims, if accompanied by a waiver of PCRA

review.

1

...[I]n short sentence cases the trial court’s

assessment of good cause should pay particular

attention to the length of the sentence imposed and

the effect the length of the sentence will have on the

defendant’s realistic prospect to be able to avail

himself of collateral review under the PCRA.

2

Unitary review describes the defendant’s ability to

pursue both preserved direct review claims and

collateral claims of trial counsel ineffectiveness on

post-sentence motions and direct appeal, and could

aptly describe both exceptions we recognize today.

However, for purposes of this appeal, we intend the

term only to describe the second exception, i.e., that

hybrid review which would encompass full-blown

litigation of collateral claims (including non-record-

based claims).

Holmes, 79 A.3d at 563–64 (some citations omitted).

Brown argues that his first claim “may be properly heard in the instant

appeal or at . . . least . . . remanded for an evidentiary hearing” because

“trial counsel’s ineffectiveness is apparent from the record in light of his

egregious failure to object to an obvious violation of [Brown]’s constitutional

rights.”6 Brown’s Br. at 10. The Commonwealth responds that Brown is not

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6

Brown does not argue that his claims are cognizable under the

unitary-review exception.

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entitled to relief for two reasons. First, it asserts that the trial court did not

have jurisdiction to consider his motion to file post-sentence motions nunc

pro tunc because Brown waited until 23 days after imposition of sentence

and he had filed his notice of appeal. Cmwlth.’s Br. at 8 (citing Pa.R.Crim.P.

720(A)(1); Commonwealth v. Martz, 926 A.2d 514, 525 (Pa.Super.

2007)). Second, the Commonwealth argues that because the trial court

denied Brown’s motion and found no merit to Brown’s claims, his case is not

an “extraordinary” case pursuant to Holmes. Id. The Commonwealth

argues that the trial court did not exercise its discretion and determine that

his claims “were both meritorious and apparent from the record, such that

immediate consideration and relief was warranted.” Id. at 9.

The trial court did not address whether extraordinary circumstances

warranting immediate consideration of Brown’s ineffectiveness claims

existed.7 Based on our review of the record, we conclude that extraordinary

circumstances do not exist here because it is not clear that Brown’s claims

are meritorious and entitled to immediate consideration and relief.8 Thus,

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7

In its Rule 1925(a) opinion, the trial court addressed only the merits

of Brown’s claim of trial counsel’s ineffectiveness for failing to request a

limiting instruction pursuant to Billa. 1925(a) Op. at 8-10. The trial court

did not address the other two claims of ineffectiveness, but rather addressed

the underlying merits of each of those claims as Brown alleged in his Rule

1925(b) statement. Id. at 4-8.

8

In its Rule 1925(a) opinion, the trial court found no merit to Brown’s

ineffectiveness claim with respect to the Billa limiting instruction and no

(Footnote Continued Next Page)

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this exception to the general rule deferring such claims to PCRA review does

not apply. Accordingly, the trial court correctly declined to review Brown’s

first two ineffectiveness claims and was not obligated to review Brown’s

ineffectiveness claim relating to Billa. Therefore, we dismiss Brown’s claims

of ineffectiveness of counsel without prejudice to his right to raise them in a

timely filed PCRA petition. See Commonwealth v. Burno, 94 A.3d 956,

971 (Pa. 2014) (concluding that appropriate disposition of collateral claims

for ineffectiveness of counsel improperly entertained by trial court is

dismissal of claims without prejudice to appellant’s right to pursue them

under PCRA).

Judgment of sentence affirmed. Ineffective assistance of counsel

claims dismissed without prejudice. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2017

_______________________

(Footnote Continued)

merit in the underlying issues of Brown’s other two ineffectiveness claims.

See 1925(a) Op. at 4-10.

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