Com. v. Brown, J.

J-S36033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JEREMY BROWN :

:

Appellant : No. 2210 EDA 2017

Appeal from the PCRA Order June 1, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003340-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 25, 2018

Appellant, Jeremy Brown, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We

affirm and grant counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows.

After a joint bench trial with a co-defendant on September 3, 2014, the court

convicted Appellant of aggravated assault, conspiracy to commit aggravated

assault, conspiracy to commit robbery, firearms not to be carried without a

license, possession of a firearm prohibited, and carrying firearms in public in

Philadelphia. The court imposed an aggregate sentence of 7 to 14 years’

incarceration on November 6, 2014. On January 13, 2016, this Court

affirmed; our Supreme Court denied allowance of appeal on June 8, 2016.

J-S36033-18

On November 17, 2016, Appellant timely filed his first pro se PCRA

petition. The PCRA court appointed PCRA counsel on December 13, 2016, and

PCRA counsel filed a motion to withdraw as counsel on February 7, 2017. The

PCRA court granted counsel’s motion to withdraw on March 1, 2017, and

appointed new PCRA counsel. On April 23, 2017, new PCRA counsel filed a

Turner/Finley1 letter and a request to withdraw as counsel. On April 24,

2017, the PCRA court issued notice of its intent to dismiss the petition without

a hearing, per Pa.R.Crim.P. 907. The PCRA court dismissed Appellant’s PCRA

petition on June 1, 2017, and permitted new PCRA counsel to withdraw.

Appellant timely filed a pro se notice of appeal and request for appellate

counsel on June 26, 2017. The PCRA court appointed appellate counsel on

July 20, 2017, and ordered Appellant on September 27, 2017, to file a concise

statement of errors complained of on appeal, per PA.R.A.P. 1925(b). On

October 9, 2017, appellate counsel filed a Rule 1925(c)(4) statement.

Appellate counsel filed with this Court a petition to withdraw representation

and a brief, designated as a brief under Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on January 9, 2018.

Before counsel can withdraw representation under the PCRA, the law

requires counsel to satisfy the mandates of Turner/Finley. Commonwealth

v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).

____________________________________________

1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);

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

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…Turner/Finley counsel must review the case zealously.

Turner/Finley counsel must then submit a “no-merit”

letter to the trial court, or brief on appeal to this Court,

detailing the nature and extent of counsel’s diligent review

of the case, listing the issues which the petitioner wants to

have reviewed, explaining why and how those issues lack

merit, and requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

Withdrawal as counsel in this context also includes certain notice

requirements: Counsel must contemporaneously serve on Appellant copies of

the “no-merit” letter or brief, the petition to withdraw, and a letter with a

statement advising Appellant that he has the immediate right to file a brief in

this Court pro se or with new privately-retained counsel within 30 days.

Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016). To withdraw,

counsel must assure this Court of counsel’s compliance with these technical

requirements. Id.

Instantly, counsel submitted a Turner/Finley brief on appeal (even

though counsel designated it as an Anders brief) and a petition to withdraw

as counsel.2 Both the brief and counsel’s petition to withdraw demonstrate he

has made a conscientious examination of the record in this case and

____________________________________________

2 In the context of a PCRA petition and request to withdraw, the appropriate

filing is a “no-merit” letter/brief. See Turner, supra; Finley, supra. But

see Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.

2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior

Court can accept Anders brief in lieu of Turner/Finley letter, where PCRA

counsel seeks to withdraw on PCRA appeal). Instantly, counsel incorrectly

designated the brief filed on appeal as an Anders brief. Although it has some

attributes of an Anders brief, we will treat it as a Turner/Finley brief.

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determined the appeal is totally frivolous. Counsel notified Appellant of

counsel’s request to withdraw, advised Appellant of his right to retain new

counsel and/or raise any points he might deem worthy of consideration, and

furnished Appellant with a copy of the petition and the brief prepared for this

appeal. Thus, counsel has substantially complied with the Turner/Finley

requirements, notwithstanding the designation on the appellate brief. See

Karanicolas, supra. Accordingly, we proceed with our independent

assessment. See Turner, supra at 494-95, 544 A.2d at 928-29 (stating

appellate court must conduct independent analysis and agree with counsel

that appeal is frivolous). Appellant has not responded to counsel’s petition.

Appellant raises one issue in the Turner/Finley brief:

DID THE PCRA COURT ERR WHEN IT DISMISSED

[APPELLANT]’S PCRA PETITION WITHOUT A HEARING AS

NOT RAISING A MERITORIOUS CLAIM UNDER THE PCRA?

(Turner/Finley Brief at 5).

Appellant argues trial counsel was ineffective for several reasons. First,

Appellant alleges trial counsel failed to preserve claims challenging the weight

of the evidence and caused them to be waived on direct appeal. Second,

Appellant contends trial counsel failed to object to the use of his co-

defendant’s out-of-court statement during the joint trial. Finally, Appellant

generally asserts trial counsel failed to raise claims of “governmental

obstruction” and “prosecutorial misconduct.” Appellant concludes he might

be entitled to some PCRA relief. We disagree.

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Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Further, a

petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA

court can decline to hold a hearing if there is no genuine issue concerning any

material fact, the petitioner is not entitled to PCRA relief, and no purpose

would be served by any further proceedings. Commonwealth v. Wah, 42

A.3d 335 (Pa.Super. 2012).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and, (3) but for

the errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong

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of the test for ineffectiveness will cause the claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the ‘reasonable basis’

test to determine whether counsel’s chosen course was

designed to effectuate his client’s interests. If we conclude

that the particular course chosen by counsel had some

reasonable basis, our inquiry ceases and counsel’s

assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [an appellant] demonstrates

that counsel’s chosen course of action had an adverse effect

on the outcome of the proceedings. The [appellant] must

show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome. In [Kimball, supra], we held that a “criminal

[appellant] alleging prejudice must show that counsel’s

errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(some internal citations and quotation marks omitted).

The following principles apply to a weight of the evidence claim:

The weight of the evidence is exclusively for the finder

of fact who is free to believe all, part, or none of the

evidence and to determine the credibility of the

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witnesses. An appellate court cannot substitute its

judgment for that of the finder of fact. Thus, we may

only reverse the…verdict if it is so contrary to the

evidence as to shock one’s sense of justice.

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d

666, 672-73 (1999). Moreover, where the trial court has

ruled on the weight claim below, an appellate court’s role is

not to consider the underlying question of whether the

verdict is against the weight of the evidence. Rather,

appellate review is limited to whether the trial court palpably

abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

“Under the Confrontation Clause of the Sixth Amendment, a criminal

defendant has a right to confront witnesses against him.” Commonwealth

v. Rivera, 565 Pa. 289, 299, 773 A.2d 131, 137 (2001), cert. denied, 535

U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002). A defendant is deprived

of his rights under the Sixth Amendment when his non-testifying co-

defendant’s facially incriminating confession is introduced at their joint trial,

even if the jury is instructed that the confession is to be considered only

against the confessing co-defendant. Id. Nevertheless, “[i]f a confession can

be edited so that it retains its narrative integrity and yet in no way refers to

[the non-confessing] defendant, then use of it does not violate the principles

of Bruton [v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)].”

Commonwealth v. Travers, 564 Pa. 362, 368, 768 A.2d 845, 848 (2001)

(quoting Commonwealth v. Johnson, 474 Pa. 410, 412, 378 A.2d 859, 860

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(1977)). In Travers, our Supreme Court held that the redaction of a non-

testifying co-defendant’s confession in a joint trial, which replaces any direct

reference to the non-confessing co-defendant with a neutral pronoun, when

accompanied by an appropriate cautionary charge, sufficiently protects the

non-confessing defendant’s Sixth Amendment rights.3 Id. at 372-73, 768

A.2d at 851.

Our standard of review for a claim of prosecutorial misconduct is limited

to “whether the trial court abused its discretion.” Commonwealth v.

DeJesus, 567 Pa. 415, 438, 787 A.2d 394, 407 (2001), cert. denied, 537 U.S.

1028, 123 S.Ct. 580, 154 L.Ed.2d 441 (2002).

In considering this claim, our attention is focused on

whether the defendant was deprived of a fair trial, not a

perfect one.

Not every unwise remark on a prosecutor’s part constitutes

reversible error. Indeed, the test is a relatively stringent

one. Generally speaking, a prosecutor’s comments do not

constitute reversible error unless the unavoidable effect of

such comments would be to prejudice the jury, forming in

their minds fixed bias and hostility toward [Appellant] so

that they could not weigh the evidence objectively and

render a true verdict. Prosecutorial misconduct, however,

will not be found where comments were based on evidence

or proper inferences therefrom or were only oratorical flair.

In order to evaluate whether comments were improper, we

must look to the context in which they were made. Finally,

when a trial court finds that a prosecutor’s comments were

inappropriate, they may be appropriately cured by a

cautionary instruction to the jury.

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3 In Travers, the direct references to the non-confessing co-defendant

contained in his co-defendant’s confession were replaced with the words “the

other man.”

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Id. at 438, 787 A.2d at 407-08 (internal citations omitted). “In considering

[an] appellant’s claims of prosecutorial misconduct, we note that a

prosecutor’s comments do not constitute evidence.” Commonwealth v.

Baez, 554 Pa. 66, 103, 720 A.2d 711, 729 (1998), cert. denied, 528 U.S. 827,

120 S.Ct. 78, 145 L.Ed.2d 66 (1999).

Instantly, the court convicted Appellant of the enumerated offenses,

following a bench trial. With respect to Appellant’s challenge to the weight of

the evidence, and trial counsel’s failure to preserve it in a post-sentence

motion, the court said:

Appellant next claims that he is entitled to a new trial on the

allegation that the verdict was against the weight of the

evidence. This claim is doubly-waived and without merit.

Appellant raises the instant claim for the first time on

appeal, in contravention of Pennsylvania Rule of Criminal

Procedure 607, which provides that weight of the evidence

claims shall be raised with the trial judge via written or oral

(on-record) motion any time before sentencing, or in a post-

sentence motion. The purpose of this rule is to make it clear

that a challenge to the weight of the evidence must be

raised with the trial judge or it will be waived.

Here, Appellant failed to preserve this claim via either

written or oral motion prior to sentencing, or post-sentence

motion—let alone present his claim in any fashion to this

[c]ourt prior to the instant appeal. As such, Appellant’s

claim is waived.

Moreover, Appellant’s claim additionally is waived pursuant

to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant merely asserts that the verdict was based only on

speculation, conjecture and surmise. This claim is utterly

vague and incapable of meaningful evaluation.

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Pennsylvania Rule of Appellate Procedure 1925(b)(4)

(Requirements; waiver) specifically mandates that

statements of matters complained of on appeal shall

concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all

pertinent issues for the judge.

When the trial court has to guess what issues an

appellant is appealing, that is not enough for

meaningful review. When an appellant fails

adequately to identify in a concise manner the issues

sought to be pursued on appeal, the trial court is

impeded in its preparation of a legal analysis which is

pertinent to those issues. In other words, a Concise

Statement which is too vague to allow the court to

identify the issues raised on appeal is the functional

equivalent of no Concise Statement at all.

Thus Appellant’s claim—which is woefully vague—is

incapable of meaningful review and should be deemed

waived.

Even if these fatal deficiencies somehow were overlooked,

Appellant’s weight claim would be unavailing. A challenge

to the weight of the evidence is addressed to the discretion

of the trial court. It is within the exclusive province of the

trier of fact to assess issues of credibility and accord weight

to testimony. The trial court, sitting as fact finder, is free to

accept all, part, or none of a witness’s testimony. A new

trial should not be granted due to a mere conflict in

testimony. Additionally, the evidence at trial need not

preclude every possibility of innocence, and the fact-finder

is free to resolve any doubts regarding a defendant’s guilt

unless the evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn from the

combined circumstances. Stated another way, a court may

award a new trial because the verdict is against the weight

of the evidence only when the verdict rendered is so

contrary to the evidence as to shock one’s sense of justice

and the award of a new trial is imperative so that right may

be given another opportunity to prevail.

In this case, this [c]ourt found the testimony of Mr. Flowers

and Ms. Lyles (both of whom positively identified Appellant

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as one of the assailants) to be patently credible. While Ms.

Lyles “cooled” her testimony somewhat at trial—i.e., she

claimed that she did not see the gun—she unequivocally

testified to hearing a gunshot, and Mr. Flowers had the

bullet wound to prove it. Accordingly, even if Appellant had

properly preserved this claim, he would be due no relief.

(Trial Court Opinion on direct appeal, filed July 2, 2015, at 12-14) (internal

citations and quotation marks omitted). We see no abuse of discretion in the

trial court’s assessment of Appellant’s weight of the evidence claim. See

Champney, supra (explaining weight of evidence is exclusively for finder of

fact who is free to believe all, part, or none of evidence and to determine

credibility of witnesses; this Court cannot substitute its judgment for that of

fact-finder and may reverse verdict only if it is so contrary to evidence as to

shock one’s sense of justice). Consequently, Appellant’s challenge to the

weight of the evidence lacks merit, and counsel cannot be considered

ineffective for failing to preserve it. See Pierce, supra; Poplawski, supra.

With respect to Appellant’s Bruton claim based on the admission of his

co-defendant’s statement, any “possible” reference to Appellant was fully

redacted. The redacted statement retained its narrative integrity but did not

refer in any way to Appellant. Therefore, the use of the co-defendant’s

statement did not violate the principles of Bruton. See Travers, supra.

Moreover, the concerns for jury taint in this context are not necessarily

present in a bench trial, which is what we have here. See Commonwealth

v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016), appeal denied, 636 Pa.

673, 145 A.3d 724 (2016) (citing Commonwealth v. Smith, 97 A.3d 782,

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788 (Pa.Super. 2014) (reiterating general rule that trial court, sitting as trier

of fact, “is presumed to know the law, ignore prejudicial statements, and

disregard inadmissible evidence”)). Thus, we conclude Appellant’s Bruton

claim lacks arguable merit, and counsel cannot be deemed ineffective for

failing to object to the statement on this basis.

With respect to Appellant’s vague complaints of “prosecutorial

misconduct” and “governmental obstruction,” Appellant does not indicate

what additional claims counsel failed to preserve at trial or on appeal. Further,

we have located nothing in the certified record to support relief in this regard.

See DeJesus, supra. Based upon the foregoing, Appellant’s claims regarding

trial counsel’s ineffectiveness on this basis merit no relief. Following our

independent review of the record, we agree with counsel that the appeal is

frivolous. Accordingly, we affirm and grant counsel’s petition to withdraw.

Order affirmed. Counsel’s petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/18

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