Com. v. Brown, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TARIQ SULTAN BROWN :

:

Appellant : No. 2622 EDA 2019

Appeal from the PCRA Order Entered August 23, 2019

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002261-2016

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 13, 2020

Tariq Sultan Brown appeals from the order entered in the Delaware

County Court of Common Pleas on August 23, 2019, dismissing his petition

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

9541-9546 after a hearing. Brown raises three claims of ineffective assistance

of counsel. We affirm.

Brown was charged with rape, statutory sexual assault, indecent

assault, endangering the welfare of a child and sexual assault after his

stepdaughter C.M. reported in December 2015 that Brown had sexually

assaulted her three years prior, when she was fifteen years old. After his first

trial ended in a mistrial due to a hung jury, a second trial took place from

November 29, 2016 until December 1, 2016. The jury found Brown guilty of

the above charges.

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On May 22, 2017, Brown was sentenced to an aggregate term of ten to

twenty years’ incarceration, followed by ten years’ probation. Brown filed a

timely notice of appeal, which was later withdrawn. Counsel then filed the

instant PCRA petition. A hearing was held, after which both parties were given

the opportunity to submit memoranda. On August 23, 2019, the PCRA court

dismissed the petition.

Brown raises the following issues on appeal:

1. Did the PCRA court err when it held that prior counsel was not

ineffective for failing to impeach C.M. with her withdrawn criminal

complaint?

2. Did the PCRA court err when it held that prior counsel was not

ineffective for failing to request a curative instruction after eliciting

prior bad acts testimony?

3. Did the PCRA court err when it held that prior counsel was not

ineffective for failing to move for a mistrial after the trial court

failed to give a curative instruction following the prosecutor's

improper commentary on [Brown] and his character witnesses'

truthfulness during closing arguments?

Appellant’s Brief, at 2.

Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled: We must examine whether the record supports

the PCRA court’s determination, and whether the PCRA court’s determination

is free of legal error. See Commonwealth v. Hall, 867 A.2d 619, 628 (Pa.

Super. 2005). The PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record. See Commonwealth v.

Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our scope of review is limited

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by the parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d

542, 544 (Pa. Super. 2005).

Here, all of Brown’s claims allege ineffectiveness of prior counsel. To

determine whether the PCRA court erred in dismissing Brown’s petition on the

claims of ineffectiveness of counsel, we must assess whether Brown

established all three elements of an ineffectiveness claim:

In order for Appellant to prevail on a claim of ineffective assistance

of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which, in the circumstances of

the particular case, so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken

place … Appellant must demonstrate: (1) the underlying claim is

of arguable merit; (2) that counsel had no reasonable strategic

basis for his or her 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. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted).

Moreover, “[w]e presume counsel is effective and place upon Appellant

the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant

relief only if Appellant satisfies each of the three prongs necessary to prove

counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-

22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim

if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at

321 (citation omitted).

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In his first issue, Brown argues that trial counsel was ineffective for

failing to impeach C.M. with her “withdrawn criminal complaint”. Appellant’s

Brief, at 2. It bears remarking that in the argument section of Brown’s brief,

he claims trial counsel was ineffective for failing to impeach C.M. with “her

December 18, 2015 police report” in which he claims C.M. declined to file

charges. See Appellant’s Brief, at 10 (emphasis supplied). This differs from

how Brown phrased the issue in the “Statement of Questions Involved” section

of his brief as well as in his Rule 1925(b) concise statement. See Appellant’s

Brief, at 2; see also Appellant’s 1925 Concise Statement, at ¶1. Therefore,

to the extent that Brown argues trial counsel should have impeached C.M.

with the police report, this issue could be deemed waived. See Pa.R.A.P. 302

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”). Nevertheless, as the trial court was able to ascertain

the actual document Brown is referencing based on the date, we will briefly

address the matter as well.

Our review of the record indicates that no prior criminal complaint was

ever filed, nor for that matter withdrawn. After a review of the record it is

clear that Brown is referencing an entry in a police department incident report

of a meeting that occurred on October 18, 2015. See Exhibit C-2, at 1-6.

Brown emphasizes that during a discussion with police on December 18, 2015,

C.M. stated she did not intend to file criminal charges, and that trial counsel

should have impeached her regarding that statement.

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On the contrary, it was C.M.’s mother, C.B., who spoke with Officer

Stephen Jones on October 18, 2015 to report that her daughter had been

sexually assaulted by her step-father. See Exhibit C-2, at 4. In his narrative

of that meeting, Officer Jones wrote that C.B. indicated that C.M. did not wish

to press charges and she was there to explore her options. See id.

Therefore, it was the victim’s mother, not the victim herself, who spoke

with the police on the date in question. Further, trial counsel questioned

Detective Houghton regarding Officer Jones’s entry in the incident report and

specifically highlighted that C.B. reported that her daughter initially did not

want to file criminal charges. See N.T., 11/30/2016, at 122-126. While Brown

argues that this evidence was hearsay and therefore improper, we note that

the Commonwealth did not raise any objection to it. See id. As a result, the

jury was not precluded from considering this testimony. See Commonwealth

v. Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002).

Therefore, trial counsel did present the jury with testimony that C.M.

had initially not planned to file charges. We further note that the

Commonwealth did not seek to contradict this assertion, and concedes it on

appeal. See Appellee’s Brief, at 9 (“the victim and her mother expressed an

initial reluctance on their part to pursue her victimization as a criminal

matter”).

Brown does not assert any new information that would have been gained

by confronting C.M. with this information. In fact, it is likely that such a

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confrontation would have been detrimental to Brown’s argument; C.M. would

have been given an opportunity to explain any number of possible reasons

why she was reluctant. In fact, C.M. testified that Brown had, at one point,

threatened “Don’t fight me, don’t give me any trouble here. Otherwise, I am

going to kill your mother.” N.T., 11/30/2016, at 52. Asking C.M. about her

initial reluctance carried significant risks and Brown does not identify any

corresponding benefits. Accordingly, Brown has failed to show he was

prejudiced by trial counsel’s failure to cross-examine C.M. on her initial

reluctance to file charges. No relief is warranted.

Brown’s second issue involves C.B.’s testimony. During trial counsel’s

cross-examination of C.B., the following exchange occurred regarding C.B.’s

relationship with Brown:

Q. Why weren’t you getting along?

A. Why [weren’t we] getting along? Do you want me to answer

why [we weren’t] getting along?

Q. I do.

A. Okay. We [were] not getting along because we stayed arguing

and [Brown] has a history of physical abuse against me.

Q. Prior to 2012

A. For the whole marriage.

Q. Whole marriage.

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N.T., 11/30/2019, at 106. Brown argues that trial counsel was ineffective for

failing to request a curative instruction after eliciting this prior bad acts

testimony.

While acknowledging that trial counsel had no reasonable basis for not

requesting a curative instruction in this instance, the PCRA court nevertheless

found Brown suffered no prejudice from the admission of this testimony. The

court concluded that any error by trial counsel for not requesting a cautionary

instruction does not entitle Brown to relief.

In explaining its decision to deny this issue, the trial court summarized

the pertinent trial testimony as follows:

[C.M.] testified that in May of 2012 [Brown] raped her. She lived

with her mother [“C.B.”], nine siblings and [Brown] in a house

located in Yeadon, Delaware County, PA. At the time of the rape

[C.B.] and [Brown] were "kind of a little separated" and [C.B.]

was sleeping with C.M. and her younger sisters on the third floor

of their home. On that night [Brown] came home from work close

to midnight. C.M. was up late working on a high school project

that was due the next day. She finished her work and as she

headed upstairs to the third-floor bedroom [Brown] called her into

the second-floor master bedroom that he had shared with C.B. He

asked C.M. to get the television remote. C.M. complied and started

to leave the room when [Brown] called her back. [Brown] told

C.M. that she was pretty, like her mom was at the same age.

[Brown] got behind C.M. He picked her up and put her on the bed,

grabbed her by her wrists and held them tightly, pulled her pants

down and put his penis in her vagina. C.M. could not sleep after

the assault. She testified that eventually she fell asleep but woke

up about three hours later and went to school.

[Brown] was no longer in the home as of September 21, 2015.

C.M. testified that she was embarrassed and ashamed of what had

happened and that she did not tell her mother about the rape until

about three years and seven months later after [Brown] moved

from the house. She did not confide in anyone, including her

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mother and best friend. During the intervening period she tried to

avoid [Brown] and was never in a room alone with him again. She

described the intervening years when she struggled with

depression and at school. Her grades fell. She was angry and

blamed her mother for putting her in a position where the assault

could happen. She testified that she took pills and was hospitalized

twice. She began "cutting" herself and did not graduate from high

school. At the suggestion of friends she went to therapy. Her

therapist was the first person that she confided in about the rape.

Her therapist encouraged her to report the rape to her family when

she was ready and eventually, in December of 2015 she followed

that advice. About a month later she went to the police

department and gave a statement. A forensic interview followed

shortly thereafter in January of 2016.

Trial Court Opinion, 10/29/2019, at 8-9. The trial court noted that this case

hinged on the credibility of C.M. See id. at 8. In concluding that Brown failed

to satisfy the prejudice necessary to prevail on this ineffectiveness claim, the

court explained

Trial counsel explored all of these areas that reflected on C.M.'s

credibility. He knew that [Brown] had three jobs and worked an

"insane" number of hours and "he was never there for them to

have any sort of relationship difficulty." Trial counsel believed that

C.M. did not "make a good impression at trial." He focused on the

three-year seven month delay in reporting, the fact that C.M.

continued to communicate with [Brown] during that period and

that she did not reveal the rape to friends or family earlier. He

highlighted the many inconsistencies and discrepancies that arose

during the investigation and in C.M.'s testimony at the preliminary

hearing and earlier trial. C.B. was not an eye witness to the rape.

It was clear that her relationship with [Brown] had soured and

that he was no longer considered a part of the family. Her

statement was isolated and reflected on the relationship between

herself and [Brown] and did not suggest that he was an abusive

father to his children and step-father. Given all of the foregoing,

Petitioner has failed to prove that "but for" C.B.'s brief and

unexpected statement the outcome at trial would have been

different.

Id. at 11.

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In the context of an ineffectiveness claim, counsel's failure to request a

cautionary instruction regarding evidence of other crimes or prior bad acts

does not constitute per se ineffectiveness; “[r]ather, in order to obtain relief

under such a claim, a defendant must still satisfy each of the three prongs of

the test for ineffective assistance of counsel.” Commonwealth v. Buehl, 658

A.2d 771, 778 (Pa. 1995).

Upon review of the record, we find support for the PCRA court's

conclusion that Brown failed to demonstrate that he was prejudiced by trial

counsel’s failure to object or seek cautionary instructions

C.B. offered her statement that Brown had a history of physical abuse

against her for the length of their marriage to explain why they were not

getting along at the time C.M. reported the rape to C.B. C.B. did not assert

that Brown had sexually abused her; nor did she testify that she had witnessed

Brown abuse C.M. As the PCRA court noted, the Commonwealth’s only direct

evidence of Brown’s guilt came from C.M.’s testimony. Brown has not

established that the jury would have found C.M.’s testimony not credible in

the absence of C.B.’s assertion of abuse at the hands of Brown. Therefore,

Brown fails to satisfy the prejudice necessary to prevail on an ineffectiveness

claim. Accordingly, the PCRA court properly denied relief on this basis.

Brown’s third, and final, issue focuses on trial counsel's failure to request

a mistrial after the Commonwealth's closing argument to the jury. Specifically,

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Brown challenges the following portion of the prosecutor’s closing argument

regarding stipulated character testimony:

We stipulated to character. Now had the character witness come

in I wouldn’t have asked him any questions. I would never ask

questions of a character witness. As far as I am concerned they

are victims in a different way than [C.M.] … They have been duped

just like everyone else, just like he is trying to dupe you. We know

that men of seemingly great character commit these crimes.

These crimes happen to our most prominent figures, they happen

in our most sacred institutions. Men of great character do horrible

things behind closed doors, we know this, your common sense

tells you that.

N.T., 12/1/2016, at 56-57. Brown’s counsel eventually asked for a sidebar to

discuss the remark, but no official objection was lodged. In response, the court

included in its charge to the jury a standard character instruction.

To establish that trial counsel was ineffective for failing to request a

mistrial, Brown must first establish that the prosecutor actually committed

misconduct. If the prosecutor did not, Brown cannot establish that his claim

has arguable merit.

For the statements identified by Brown to constitute prosecutorial

misconduct, he must establish that they were more than exuberant advocacy

or a biased recitation of the evidence:

It is well established that a prosecutor is permitted to vigorously

argue his case so long as his comments are supported by the

evidence or constitute legitimate inferences arising from that

evidence.

In considering a claim of prosecutorial misconduct, our

inquiry is centered on whether the defendant was deprived

of a fair trial, not deprived of a perfect one. Thus, a

prosecutor's remarks do not constitute reversible error

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unless their unavoidable effect ... [was] to prejudice the

jury, forming in their minds fixed bias and hostility toward

the defendant so that they could not weigh the evidence

objectively and render a true verdict. Further, the allegedly

improper remarks must be viewed in the context of the

closing argument as a whole.

Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (internal

citations and quotation marks omitted).

We agree with the trial court that the prosecutor's discussion of

character and reputation testimony was permissible argument. “The

Commonwealth [is] permitted to ask the jury to consider the source of that

character testimony in assessing the witnesses' credibility and the weight to

be given to their testimony.” Commonwealth v. Gibson, 688 A.2d 1152,

1165 (Pa. 1997) (citation omitted).

The prosecutor’s remarks addressed the impact and quality of Brown’s

character testimony. The highlighted statement merely pointed out that

crimes of this nature take place in secret, so although the witnesses may

speak to the appellant’s seemingly unassailable character in the community,

they would be unaware of an appellant’s behavior in private. The prosecutor

properly pointed out the inherent limits of reputation evidence: people with

admittedly outstanding reputations may nevertheless act inconsistently with

that reputation. Moreover, the district attorney did not impugn Brown’s

character, but simply encouraged the jury to view reputation evidence from

people who know him outside of his private life with a critical eye. Therefore,

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such remarks were not improper and did not constitute prosecutorial

misconduct.

On this record, we must conclude that the impact of the highlighted

passage on the jury was not so prejudicial as to require trial counsel to

request, nor the trial court to grant, a mistrial. The PCRA court did not err in

finding that the prosecutor's remarks were a permissible comment on the

credibility and the weight of the character evidence. See Commonwealth v.

Van Cliff, 397 A.2d 1173, 1178 (Pa. 1979) (finding “[t]he jury merely was

encouraged to view appellant's character testimony with a critical eye rather

than to conclude that appellant's character was necessarily bad”). Brown is

due no relief on his third claim.

As none of Brown’s issues on appeal warrant relief, we affirm the order

dismissing Brown’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/20

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