Com. v. Brown, R.

J. S02005/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

RASHEEN BROWN, : No. 1372 EDA 2017

:

Appellant :

Appeal from the PCRA Order, May 16, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0011871-2010

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2019

Rasheen Brown appeals from the May 16, 2017 order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

The relevant facts and procedural history of this case, as summarized

by a prior panel of this court on direct appeal, are as follows:

In September of 2011, a jury convicted [a]ppellant of

[indecent assault of a person less than 13 years of age

and endangering the welfare of children1] based on

evidence that he sexually abused his 11-year-old

stepdaughter [(hereinafter, “victim”)]. Appellant was

initially sentenced to 6 to 14 months’ incarceration,

but the court later granted his motion for

reconsideration and resentenced him to a term of

time-served to 23 months’ incarceration (with

immediate parole to house arrest), followed by

1 18 Pa.C.S.A. §§ 3126(a)(7) and 4304(a), respectively.

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5 years’ probation[, on April 30, 2012.2] Appellant did

not file a direct appeal.

However, [a]ppellant subsequently filed a [PCRA

petition], seeking the reinstatement of his direct

appeal rights. The PCRA court granted that petition

and [a]ppellant filed a timely notice of appeal nunc

pro tunc. On September 6, 2013, the [PCRA] court

issued an order directing [a]ppellant to file a

Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant filed an untimely

Rule 1925(b) statement on September 30,

2013.[Footnote 1]

[Footnote 1] Because the trial court

issued a Rule 1925(a) opinion adequately

addressing the issue raised by [a]ppellant

herein, the untimeliness of [a]ppellant’s

concise statement does not necessitate

remand under Rule 1925(c)(3). See

Pa.R.A.P. 1925(c)(3) (“If an appellant in a

criminal case was ordered to file a

Statement and failed to do so, such that

the appellate court is convinced that

counsel has been per se ineffective, the

appellate court shall remand for the filing

of a Statement nunc pro tunc and for the

preparation and filing of an opinion by the

judge.”); Commonwealth v. Burton,

2 Specifically, the trial court’s April 30, 2012 order states as follows:

AND NOW, to wit, this 30th day of April, 2012, [it] is

hereby ORDERED AND DECREED that [appellant] is

sentenced as follows: Time in to twenty[-]three

months, [appellant] is to be released from custody at

ASD immediately, he is to have immediate parole.

Upon release [appellant] is directed to House Arrest

and he will be provided with an electronic monitor. To

be followed by five (5) years[’] reporting probation.

[Appellant] is permitted to go to Medical

Appointments as needed and religious services only.

Trial court order, 4/30/12.

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973 A.2d 428, 433 (Pa.Super. 2009)

(holding that despite the mandate of

Rule 1925(c)(3), “if there has been an

untimely filing [of a Rule 1925(b)

statement], this Court may decide the

appeal on the merits if the trial court had

adequate opportunity to prepare a

decision addressing the issues being

raised on appeal”).

Commonwealth v. Brown, No. 2404 EDA 2013, unpublished memorandum

at 1-2 (Pa.Super. filed December 31, 2014).

On December 31, 2014, a panel of this court affirmed appellant’s

judgment of sentence, and appellant did not seek allowance of appeal with

our supreme court. Id. On September 21, 2015, appellant filed a timely

PCRA petition alleging that his trial counsel3 was ineffective for failing to object

to the trial court’s jury instruction on indecent assault of a person less than

13 years of age. (See PCRA petition, 9/21/15 at 2, 4-5.)4 The Commonwealth

filed an answer to appellant’s PCRA petition on May 12, 2016. Appellant, in

turn, filed a supplemental PCRA petition on November 29, 2016. Thereafter,

on March 16, 2017, the PCRA court provided appellant with notice, pursuant

to Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a

hearing. Appellant subsequently filed a notice of appeal on April 24, 2017.

On May 16, 2017, the PCRA court dismissed appellant’s petition without a

3 Appellant was represented at trial by Andres Jalon, Esq.

4 Appellant’s PCRA petition does not contain pagination; for the ease of our

discussion, we have assigned each page a corresponding number.

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hearing. Although not ordered to do so, appellant filed a concise statement

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

3, 2017. On March 29, 2018, this court was notified that the Honorable Earl

Trent is no longer sitting on the bench and that no opinion will be

forthcoming.5, 6

Appellant raises the following issue for our review:

Did trial counsel’s failure to object and request a

correction to the trial court’s incomplete and incorrect

charge as to count four of docket CP-51-CR-0011871-

2013, Indecent Assault of a Person Less than Thirteen

Years of Age, 18 Pa.C.S.A. § 3126(a)(7), constitute

ineffective assistance of counsel; and, if so, should the

judgment of sentence as to that charge be vacated?

Appellant’s brief at 3.

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

5 Appellant’s appeal is properly before us. See Pa.R.A.P. 905(a)(5) (“[a]

notice of appeal filed after the announcement of a determination but before

the entry of an appealable order shall be treated as filed after such entry on

the day thereof.”).

6 We note that in order to be eligible for PCRA relief, a PCRA petitioner must

be “currently serving a sentence of imprisonment, probation or parole for the

crime” at issue. 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Williams,

977 A.2d 1174 (Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010).

The docket reflects that appellant is still serving his sentence, as his probation

was revoked on November 9, 2015 following his guilty plea to insurance fraud

at CP-51-CR-0007456-2015 and he was sentenced to additional 4 years’

probation on the instant matter.

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findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

Where the PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as is the case here, we review the PCRA court’s decision

for an abuse of discretion. See Commonwealth v. Roney, 79 A.3d 595, 604

(Pa. 2013), cert. denied, U.S. , 135 S.Ct. 56 (2014) (citation

omitted). Moreover,

the right to an evidentiary hearing on a

post-conviction petition is not absolute. It is within

the PCRA court’s discretion to decline to hold a hearing

if the petitioner’s claim is patently frivolous and has

no support [in] either in the record or other evidence.

It is the responsibility of the reviewing court on appeal

to examine each issue raised in the PCRA petition in

light of the record certified before it in order to

determine if the PCRA court erred in its determination

that there were no genuine issues of material fact in

controversy and in denying relief without conducting

an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal

citations omitted).

Here, appellant’s sole contention on appeal concerns the purported

ineffectiveness of trial counsel. To prevail on a claim of ineffective assistance

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of counsel under the PCRA, a petitioner must plead and prove by a

preponderance of the evidence that counsel’s ineffectiveness “so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We apply

a three-pronged test for determining whether trial counsel was ineffective,

derived from the test articulated by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687 (1984), and as applied in

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

Simpson, 66 A.3d 253, 260 (Pa. 2013).

The Pierce test requires a PCRA petitioner to prove:

(1) the underlying legal claim was of arguable merit;

(2) counsel had no reasonable strategic basis for his

action or inaction; and (3) the petitioner was

prejudiced — that is, but for counsel’s deficient

stewardship, there is a reasonable likelihood the

outcome of the proceedings would have been

different.

Id., citing Pierce, 527 A.2d at 975.

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d

1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011)

(citation omitted). Additionally, we note that counsel cannot be found

ineffective for failing to raise a claim that is devoid of merit. See

Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

Appellant contends that trial counsel was ineffective for not objecting to

and not requesting a correction of the trial court’s jury instruction on indecent

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assault of a person less than 13 years of age. (Appellant’s brief at 8.)

Appellant avers that trial counsel should have objected to the trial court’s jury

instruction because it failed to define the term “indecent contact.” (Id. at 8-

10.)

[W]hen evaluating the propriety of jury instructions,

this Court will look to the instructions as a whole, and

not simply isolated portions, to determine if the

instructions were improper. We further note that, it

is an unquestionable maxim of law in this

Commonwealth that a trial court has broad discretion

in phrasing its instructions, and may choose its own

wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.

Only where there is an abuse of discretion or an

inaccurate statement of the law is there reversible

error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014) (citations

and bracket omitted), appeal denied, 95 A.3d 275 (Pa. 2014)

Here, the trial court instructed the jury on the charge of indecent assault

of a person less than 13 years of age as follows, tracking, in part, Pennsylvania

Standard Jury Instruction § 15.312C:

The defendant has been charged with indecent assault

of a child. To find the defendant guilty of this offense,

you must find that the following two elements have

been proven beyond a reasonable doubt.

First, that the defendant has indecent contact with

[victim] or caused [victim] to have indecent contact

with the defendant. Second, that [victim] was less

than 13 years old.

Notes of testimony, 9/21/11 at 241-242; see also Pa.SSJI § 15.312C. On

the second day of deliberations, the court reiterated its instruction regarding

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the offense of indecent assault of a person less than 13 years of age. (See

notes of testimony, 9/22/11 at 7-8.)

“Indecent contact” is defined by statute as “[a]ny touching of the sexual

or other intimate parts of the person for the purpose of arousing or gratifying

sexual desire, in any person.” 18 Pa.C.S.A. § 3101. Although appellant is

correct that the trial court’s indecent assault instruction did not explicitly

define the term “indecent contact,” we find that appellant has failed to prove

he was prejudiced by trial counsel’s failure to object to the charge on this

basis. “A petitioner establishes prejudice when he demonstrates that there is

a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Commonwealth v.

Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation

marks omitted).

Instantly, appellant contends that “it is very likely that the jury would

not have [found appellant guilty of] . . . indecent assault of a child had they

been instructed that the crime ‘requires a sexual intent or purpose.’”

(Appellant’s brief at 10.) Contrary to appellant’s contention, however, all of

the alleged criminal conduct was sexual in nature, thereby precluding such a

distinction. Moreover, the term “indecent contact” is clear and unambiguous

and can be discerned by the term’s common usage. See Commonwealth v.

Zambelli, 695 A.2d 848, 849 (Pa.Super. 1997) (stating that, “where language

of a statute is clear and unambiguous, it must be given effect in accordance

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with its plain and common meaning.” (citations omitted)). Here, the jury

heard considerable evidence that appellant repeatedly sexually abused the

minor victim by fondling her breasts and buttocks with his hands, behavior

that ultimately escalated to allegations that he vaginally raped her on several

occasions.7 (See notes of testimony, 9/20/11 at 27-33.) Appellant’s actions

were undoubtedly indecent contact according to the common usage of the

term. Thus, even if trial counsel had objected to and/or requested a correction

of the trial court’s jury instruction to define the term “indecent contact,”

appellant has not demonstrated “a reasonable likelihood the outcome of the

proceedings would have been different.” See Simpson, 66 A.3d at 260

(citation omitted).

We need not consider every prong of the Strickland/Pierce test when

one prong has not been satisfied, as is the case here. Commonwealth v.

Spotz, 84 A.3d 294, 319 (Pa. 2014) (stating, “[a]bsent a showing of such

prejudice, the claim of ineffectiveness fails, regardless of whether counsel

lacked a ‘reasonable basis.’”). Accordingly, we conclude that appellant’s

ineffectiveness claim warrants no relief.

Order affirmed.

7 The jury failed to reach a verdict with respect to appellant’s rape, sexual

assault, and indecent exposure charges, and the Commonwealth nolle

prosequied those charges.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/19

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