Com. v. Brown, B.

J-S27026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BERNIE BROWN :

:

Appellant : No. 834 EDA 2017

Appeal from the PCRA Order January 27, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0014866-2008

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 29, 2018

Bernie Brown appeals, pro se, from the order entered in the Court of

Common Pleas of Philadelphia County dismissing his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

The trial court set forth the relevant factual background of the case as

follows:

On August 3, 2008 [Brown] and his neighbor, Shakeya Green, had

a dispute over an illegally parked car in front of 1255 Adams

Avenue in Philadelphia. Ms. Green, who lived with her boyfriend,

Christopher Lancaster, and their two children, had noticed that a

car was parked in the middle of Adams Avenue and was thus

blocking incoming and outgoing traffic. Ms. Green knocked on

[Brown’s door;] [Green] had never met [Brown]. [Brown] and his

girlfriend, to whom the car belonged, answered the door, and the

three got into an argument. Ms. Green then called Mr. Lancaster,

who came over and “had words” with [Brown].

Two days later, on August 5, 2008, Mr. Lancaster was sitting in

his Jeep in front of his apartment at 1255 Adams Avenue. Mr.

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Lancaster was talking to his uncle, who lived across the street,

when [Brown] approached him. [Brown] asked Mr. Lancaster if

he wanted to talk about the argument they had two days before.

Mr. Lancaster waved him away and turned his back to [Brown].

As soon as he turned around, [Brown] shot Mr. Lancaster in the

back. The gunshot spun him around so that he was facing

[Brown]. As [Brown] kept shooting, Mr. Lancaster attempted to

crawl under his Jeep. This led [Brown] to continue to shoot at Mr.

Lancaster under the Jeep. Mr. Lancaster screamed to [Brown],

“You already shot me, what else do you want to do, kill me now?”

This failed to deter [Brown], who continued to shoot, ultimately

hitting [Mr. Lancaster] eight times. [Brown] then fled the scene

in a black car. Mr. Lancaster’s uncle tried to help him into his

apartment and then called the police.

At the time of the shooting, Ms. Green had been sleeping in the

apartment she shared with Mr. Lancaster. She was awakened by

gunshots, looked out the bedroom window and saw [Brown] fire

the last two shots at Mr. Lancaster. She ran downstairs to the

kitchen window, where she saw [Brown] leave in a black car. Ms.

Green then called the police.

Mr. Lancaster was transported to Temple University Hospital,

where he remained for [2½] weeks. He had been shot in the back,

thigh, knee, chin, armpit, and arm. Before he was brought into

surgery, detectives showed Mr. Lancaster a photograph of

[Brown], and Mr. Lancaster identified [Brown] as the shooter.

Two days later, police returned to the hospital to interview Mr.

Lancaster, and he again identified [Brown] as the shooter.

[Brown] was apprehended and arrested for the crime by the

Warrant Unit approximately two months later.

Trial Court Opinion, 1/25/12, at 2-3 (record citations and footnotes omitted).

On October 28, 2009, Brown was convicted by a jury of attempted

murder,1 aggravated assault,2 possession of a firearm by a prohibited person,3

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1 18 Pa.C.S §§ 902, 2502.

2 18 Pa.C.S. § 2702(a)(1).

3 18 Pa.C.S. § 6105(a)(1).

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carrying a firearm without a license,4 and possessing an instrument of crime.5

On December 2, 2009, the trial court sentenced Brown to an aggregate

sentence of 24-48 years’ incarceration. Brown did not file post-trial motions

or a direct appeal. On April 30, 2010, Brown filed a timely first PCRA petition

alleging trial/sentencing counsel was ineffective for failing to file post-

sentence motions or a direct appeal and seeking reinstatement of his appellate

rights. Brown’s direct appeal rights were reinstated. On appeal, our Court

affirmed his judgment of sentence. See Commonwealth v. Brown, 3015

EDA 2011 (Pa. Super. filed Aug. 14, 2012).

On January 4, 2013, Brown filed another pro se PCRA petition; counsel

was appointed to represent him. Despite being represented, Brown filed two

additional amended PCRA petitions on June 20, 2014 and July 9, 2014.

Counsel subsequently filed a Finley6 “no-merit” letter stating there was no

merit to Brown’s claims and seeking withdrawal from the case. The court

subsequently issued its Pa.R.Crim.P. 907 notice to dismiss Brown’s petition

without a hearing. Brown filed a pro se response to the Rule 907 notice,

asserting five additional claims not raised in his original petition. In response,

the court directed PCRA counsel to review these additional claims and either

file an amended petition or amended Finley “no-merit” letter. Counsel

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4 18 Pa.C.S. § 6106(a)(1).

5 18 Pa.C.S. § 907(a).

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

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complied with the court’s directive and filed an amended Finley “no-merit”

letter stating that he had reviewed Brown’s additional claims and that they

were meritless. On January 27, 2017, the court dismissed Brown’s petition

without a hearing. He filed a timely appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

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

(1) W[ere] all counsel[] ineffective[7] for not arguing the

ineffectiveness of John M. Belli, Esquire’s ineffective

assistance for failing to file a[n] Allocat[u]r [Petition] with[]

the Pennsylvania Supreme Court on Appellant’s one and

only [d]irect [a]ppeal?

(2) W[ere] all counsel[] ineffective for not arguing the

ineffectiveness of Trial Counsel for not objecting to improper

Jury Charges of attempt[ed] murder and that the

Commonwealth must prove by a pr[e]p[o]nderance of the

evidence “to kill another human being with malice,” when

the Court charging the jury with attempt[ed] murder was

defective, and in violation of Pennsylvania Suggested

Standard Criminal Jury Instruction 12.901 A, which states

malice must be proven in order to convict one of attempt

murder?

(3) W[ere] all counsel[] ineffective for not arguing the

ineffectiveness of trial counsel Mr. Ciancaglini for failure to

object to trial [c]ourt’s charge [that] it failed to concisely

include the (3) three elements needed, where instead the

word “elements” was used instead, [especially . . . where

the charge is [a]ttempted [m]urder, the [c]ourt must

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7 With respect to claims of ineffective assistance of counsel, we begin with the

presumption that counsel is effective. Commonwealth v. Spotz, 47 A.3d

63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner must

plead and prove, by a preponderance of the evidence, three elements: (1)

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

basis for his or her action or inaction; and (3) the petitioner suffered prejudice

because of counsel’s action or inaction. Id. (citation omitted).

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ensure the [j]ury is instructed that malice alone is not

sufficient to sustain the charge?

(4) W[ere] all counsel[] ineffective for not arguing that [t]rial

[c]ounsel Mr. Ciancaglini [was] ineffective for not looking

into the criminal history of Christopher [L]ancaster, and his

girl firend [sic] Shakeya Green, who took the stand?

(5) W[ere] all counsel[] ineffective for not arguing that trial

attorney Mr. Ciancaglini [was] ineffective for allowing the

Assistant District Attorney Caroline Keating, Esquire to

int[r]oduce into evidence the Medical Examiner[’s] medical

report who conducted the examination and who was not

their [sic] at the trial to testify in violation of [Brown’s]

Confrontation Clause of Federal Constitution Sixth

Amendment?

(6) W[ere] all counsel[] ineffective for not arguing trial

[c]ounsel Mr. Ciancaglini[’s] ineffectiveness for not adopting

a self-defense and/or duress/necessity defense?

(7) W[ere] all counsel[] ineffective for not arguing that trial

counsel, Mr. Ciancaglini[, was] ineffective for not hiring

[Brown’s] own [e]xpert [m]edical [e]xaminer [or a private

detective] to refute the Commonwealth’s [m]edical

records[]?

(8) Was Attorney Mosser’s Finley [l]etter proper when it did not

list all the issues nor the Medical Examiner’s Confrontation[]

Clause issue within his no-merit letter?

Appellant’s Brief, at 5.

In his first issue, Brown contends that all prior counsel were ineffective

for not arguing that direct appeal counsel was ineffective for failing to file a

petition for allowance of appeal (PAA) with the Pennsylvania Superior Court.

Brown claims he was prejudiced by counsel’s omissions and that this Court

should reinstate his right to appeal to the Supreme Court.

The Pennsylvania Supreme Court held that where counsel informs his

client that he will file a PAA, but fails to do so in a timely fashion, a cognizable

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claim of ineffectiveness exists. Commonwealth v. Liebel, 825 A.2d 630 (Pa.

2003). The Court further held that, in such an instance, a petitioner is not

required to prove that the Pennsylvania Supreme Court would have granted

the petition. See Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa. 2009)

(counsel is per se ineffective for failing to file requested PAA);

Commonwealth v. Reaves, 923 A.2d 1119, 1129 (Pa. 2007) (same).

Instantly, Brown does not allege that he either requested that counsel

file a PAA8 or that counsel told him that he would file a PAA and failed to do

so. Thus, he is not entitled to relief on this claim. Liebel, supra; Reed,

supra.

Brown next contends that prior counsel were ineffective for not arguing

that trial counsel was ineffective for not objecting to improper jury charges.

Specifically, Brown claims that the charge of attempted murder was defective

where the charge did not include the requisite element of specific intent to

commit the act, did not instruct that malice alone is not sufficient to sustain

the charge, and where three elements should have been specifically

enumerated.

We first note that “[a] trial court has wide discretion in phrasing jury

instructions. When reviewing an allegation of an incorrect jury instruction,

the appellate court must view the entire charge to determine whether the trial

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8 In fact, in PCRA counsel’s Finley “no-merit” letter, counsel avers that Brown

told him he chose not to pursue a PAA after conferring with prior counsel.

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court clearly and accurately presented the concepts of the legal issue to the

jury and should not reverse, as a result of the instruction, unless the trial court

committed an abuse of its discretion.” Commonwealth v. Ragan, 743 A.2d

390, 397-98 (Pa. 1999). As an appellate court, “[w]e will not examine a

phrase or sentence of an instruction in a vacuum. Rather, when we evaluate

a challenge to a charge, it must consider how each part fits together to convey

a complete legal principle.” Commonwealth v. Geathers, 847 A.2d 730,

733 (Pa. Super. 2004). Moreover, trial counsel will not be held to be

ineffective for failing to object to an erroneous jury instruction unless the

petitioner can establish prejudice. Commonwealth v. McGill, 832 A.2d 1014

(Pa. 2003).

Instantly, a review of the notes of testimony from the jury charge

demonstrates that the trial judge explained that Brown was being charged

with attempted murder and that to find him guilty of that offense “you must

find the following three elements have been proven beyond a reasonable

doubt.” N.T. Jury Trial, 10/28/09, at 117. The court then enumerated each

of the three requisite elements of attempted murder: (1) commit certain act

(shooting); (2) specific intent to kill victim; and (3) act constituted a

substantial step toward commission of killing victim that defendant intended

to bring about. Id. (emphasis added).

Here, the trial judge properly listed the three required elements to prove

the crime of attempted murder, including that of specific intent to kill. See

Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994) (for defendant to be

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found guilty of attempted murder, Commonwealth must prove specific intent

to kill); see also Geathers, supra (court incorrectly instructed jury that

malice, rather than specific intent, was sufficient to prove attempted murder).9

Even though the court did not specifically state that malice alone is not

sufficient to prove attempted murder, the charge, as a whole, conveyed the

proper legal principle. Geathers, supra. Moreover, Brown has not proven

how this alleged omission caused him prejudice. McGill, supra. Thus, no

relief is due. Ragan, supra.

In his next issue on appeal, Brown asserts that prior counsel were

ineffective for failing to object to trial counsel’s failure to look into the criminal

histories of trial witnesses, Christopher Lancaster and Shakeya Green.

Moreover, Brown alleges that a Brady10 violation occurred where the district

attorney’s office did not turn over Lancaster’s and Green’s criminal histories,

which he claims are replete with “all things including assaults,” after it was

requested to do so.

In his brief, Brown generally asserts that this underlying legal issue has

arguable merit, that counsel lacked an objective, reasonable basis for his

actions, and that he was prejudiced on account of counsel’s actions. Under

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9 Although his argument is mostly incomprehensible, Brown seems to imply

that malice is a required element of attempted murder. This is simply not

true. See Geathers, supra.

10 Brady v. Maryland, 373 U.S. 83 (1963) (setting forth prosecution’s

obligation to disclose impeachment evidence as well as exculpatory evidence,

as that evidence is evidence favorable to the accused).

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such circumstances we will not consider such claim. See Commonwealth v.

Begley, 780 A.2d 605 (Pa. 2001) (assertions of ineffectiveness in vacuum

cannot be ineffectiveness; to have court consider claims, party alleging

ineffectiveness must set forth offer to prove at appropriate hearing sufficient

facts upon which reviewing court can conclude that trial counsel may have, in

fact, been ineffective).11

Brown next claims that all prior counsel were ineffective for not arguing

that trial counsel was ineffective for not objecting to the assistant district

attorney’s introduction into evidence of the medical examiner’s report because

the examiner did not testify at trial, thus violating his rights under the

Confrontation Clause.

In all criminal prosecutions, the accused shall enjoy “the right . . . to be

confronted with the witnesses against him.” U.S. Const. Amend. VI. The

Confrontation Clause applies to witnesses against the accused, in other words

-- those who bear testimony. In order for a testimonial document to be

admissible, the witness who prepared it must testify at trial, unless he or she

is unavailable and the defendant had a prior opportunity for cross-

examination. Commonwealth v. Brown, 139 A.3d 208 (Pa. Super. 2016).

Instantly, the district attorney did not admit the medical examiner’s

report as there was none prepared because the victim’s injuries were not fatal.

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11 In any event, only crimen falsi crimes would have been admissible at trial

as Brown did not assert justification or self-defense as defenses. The crime

of assault is not considered a crimen falsi crime as it is not one that involves

dishonesty or false statement. See Pa.R.E. 609.

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However, the parties did stipulate at trial that some of the victim’s medical

records from Temple University Hospital, which detailed his injuries and

medical treatment, could be read to the jury. These hospital records,

however, were non-testimonial in nature. Brown, supra (document is

testimonial if its primary purpose is created or given under circumstances

which would lead objective witness reasonably to believe that document or

statement would be available for use at later trial). Under such circumstances

we do not find that counsel was ineffective or that Brown’s rights under the

Confrontation Clause were violated.

In his next issue, Brown contends that trial counsel was ineffective for

failing to present the defenses of self-defense or duress. Here, the

uncontradicted evidence at trial showed that Brown approached the unarmed

victim, shot him in the back multiple times at point-blank range as the victim

walked away, and continued to shoot the victim as he hid under his car,

causing the victim to sustain a total of eight gunshot wounds. 12 Under such

circumstances, we cannot fathom that the evidence would support a defense

of either duress or self-defense. Thus, counsel cannot be deemed ineffective.

Spotz, supra.

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12 Although Brown contends he is handicapped and has only one leg, he fails

to show how this fact changes the irrefutable evidence that he provoked the

incident and inflicted eight gunshot wounds upon his defenseless victim.

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In his next issue, Brown contends that all prior counsel were ineffective

for not raising trial counsel’s ineffectiveness in failing to hire an expert or

private investigator to refute the Commonwealth’s medical evidence.

Again, both parties reasonably stipulated to the evidence from the

victim’s medical records from Temple Hospital, detailing the victim’s injuries

and treatment. Brown does not articulate how the failure to hire an expert or

investigator to “refute” the records would have bolstered his defense and, in

its absence, prejudiced him. Thus, we find this claim fails too.

Finally, Brown asserts that PCRA counsel was ineffective for failing to

list all of Brown’s issues in his Finley no-merit letter. Specifically, he claims

that counsel omitted review of his Confrontation Clause/medical records issue.

This claim is belied by the record.

In his Finley letter, dated December 12, 2016, PCRA counsel stated:

Next, Defendant alleges that trial counsel was ineffective for

failing to object to the admission of the report of a medical

examiner who did not conduct the examination because the

admission of those records violated the Confrontation Clause,

pursuant to Crawford v Washington, 541 U.S. 36 (2004), and

its progeny. Because the victim in this case did not die, Defendant

is presumably referring to a stipulation as to the records regarding

the victim’s medical treatment rather than an autopsy report. The

rationale of Crawford is only applicable where the evidence in

question is testimonial. Commonwealth v. Allshouse, 36 A.3d

163, 175-76 (Pa. 2012)[.] Statements are testimonial if the

primary purpose of the statement is to establish past events for

the purpose of a future criminal prosecution. Michigan v.

Bryant, 131 S.Ct. 1143, 1154 (2011). Here, no report was

admitted at all. Rather, the stipulation at issue merely recounted

the victim’s injuries and the treatment provided and did not draw

any [conclusions] as to the cause of those injuries. That

information was compiled for the purpose of providing medical

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care, not in preparation for trial. Therefore, there was no

[C]onfrontation [C]lause issue and counsel had no reason to

object to the stipulation.

Finley No-Merit Letter by Todd M. Mosser, Esquire, 12/21/16, at 3. Because

PCRA counsel properly reviewed Brown’s Confrontation Clause claim and

concluded that it lacked merit, we find no error on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/18

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