Com. v. Brown, N.

J-S16012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NIGEL BROWN, :

:

Appellant : No. 597 EDA 2019

Appeal from the PCRA Order Entered January 16, 2019

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

No(s): CP-51-CR-0009591-2015,

CP-51-CR-0009627-2015, CP-51-CR-0011766-2015,

CP-51-CR-0012718-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NIGEL BROWN, :

:

Appellant : No. 599 EDA 2019

Appeal from the PCRA Order Entered January 16, 2019

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

No(s): CP-51-CR-0009591-2015,

CP-51-CR-0009627-2015, CP-51-CR-0011766-2015,

CP-51-CR-0012718-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NIGEL BROWN, :

:

Appellant : No. 600 EDA 2019

Appeal from the PCRA Order Entered January 16, 2019

J-S16012-20

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

No(s): CP-51-CR-0009591-2015,

CP-51-CR-0009627-2015, CP-51-CR-0011766-2015,

CP-51-CR-0012718-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NIGEL BROWN, :

:

Appellant : No. 601 EDA 2019

Appeal from the PCRA Order Entered January 16, 2019

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

No(s): CP-51-CR-0009591-2015,

CP-51-CR-0009627-2015, CP-51-CR-0011766-2015,

CP-51-CR-0012718-2015

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED JANUARY 5, 2021

Appellant, Nigel Brown, appeals from the Order entered January 16,

2019, which dismissed his first Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant asserts ineffective

assistance of counsel, which induced Appellant to enter an unknowing and

involuntary guilty plea. After careful review, we affirm.

On August 7, 2017, Appellant entered into a negotiated guilty plea to

several counts of Robbery and related crimes committed between April 2015

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and September 2015.1 In exchange for his plea, the lower court imposed an

aggregate sentence of seven to fifteen years of incarceration followed by five

years of probation. In addition, the Commonwealth agreed to nolle pros

twenty additional crimes charged. Appellant did not file any post-sentence

motions and did not appeal from the Judgment of Sentence.

On August 6, 2018, Appellant timely and pro se filed a Petition for

collateral relief. The PCRA court appointed counsel, who filed an Amended

Petition asserting claims of ineffective assistance of plea counsel. According

to Appellant, counsel provided ineffective assistance because she failed “to file

and litigate pre-trial motions; and fail[ed] to provide discovery to [Appellant].”

Amended Petition, 10/17/18, at ¶ 8. Based on these allegations of

ineffectiveness, Appellant further averred that counsel had unlawfully induced

Appellant to plead guilty. Id. at ¶ 9.

On December 12, 2018, the PCRA court issued notice of its intent to

dismiss Appellant’s Amended Petition without a hearing pursuant to

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1 At Docket No. 9591-2015, Appellant pleaded guilty to Robbery – Threat of

Immediate Serious Bodily Injury, Conspiracy, and Possession of Instruments

of Crime. 18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a), 907(a), respectively. At

Docket No. 9627-2015, Appellant pleaded guilty to Aggravated Assault,

Robbery – Inflicted Serious Bodily Injury, and Firearms Not to be Carried

without a License. 18 Pa.C.S. §§ 2702(a)(1), 3701(a)(1)(i), 6106(a)(1),

respectively. At Docket No. 11766-2015, Appellant pleaded guilty Robbery –

Take Property by Force. 18 Pa.C.S. § 3701(a)(1)(v). At Docket No. 12718-

2015, Appellant pleaded guilty to Resisting Arrest. 18 Pa.C.S. § 5104.

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Pennsylvania Rule of Criminal Procedure 907. Thereafter, on January 16,

2019, the PCRA court dismissed the Amended Petition as without merit.

Appellant pro se appealed.2 Appellant and the court complied with

Pa.R.A.P. 1925.

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2 Appellant pro se appealed; however, appointed PCRA counsel continues to

represent him in these proceedings. See Commonwealth v. Williams, 151

A.3d 621, 624 (Pa. Super. 2016). Although this appeal has two procedural

defects that implicate our jurisdiction, due to a breakdown in the judicial

system explained infra, we decline to quash the appeal.

First, Appellant did not timely appeal from the PCRA court’s January 16, 2019

Order. See Notice of Appeal, 2/19/19. This is a violation of Pennsylvania

Rule of Appellate Procedure 903 and renders the appeal subject to quashal.

See Commonwealth v. Crawford, 17 A.3d 1279, 1280-82 (Pa. Super.

2011); Pa.R.A.P. 903(a) (requiring an appeal be filed within thirty days).

However, we may overlook an untimely appeal when the PCRA court has not

informed a petitioner of his right to appeal from the final order disposing of

his petition, and of the time within which an appeal must be taken.

Commonwealth v. Liebensperger, 904 A.2d 40, 43-44 (Pa. Super. 2006)

(applying Pa.R.Crim.P. 907(4)). Here, the PCRA court’s Order dismissing

Appellant’s Petition failed to inform Appellant of his right to appeal. We, thus,

decline to quash this appeal on the basis of the Petition’s untimeliness.

Secondly, Appellant filed a single Notice of Appeal identifying the four criminal

dockets relevant to this case: CP-51-CR-0009591-2015, CP-51-CR-0009627-

2015, CP-51-CR-0011766-2015, and CP-51-CR-0012718-2015. This is a

violation of Pennsylvania Rule of Appellate Procedure 341(a).

Commonwealth v. Walker, 185 A.3d 969, 976-77 (Pa. 2018) (requiring a

separate notice of appeal filed for each docket relevant to an appeal).

However, we may overlook the requirements of Walker when the lower court

does not advise a defendant of his appellate rights or determine on the record

that a defendant has been advised of his appellate rights. Commonwealth

v. Floyd, --- A.3d ---, 84 MDA 2019 at *6-7 (Pa. Super. filed December 16,

2020) (applying Commonwealth v. Larkin, --- A.3d ---, 2761 EDA 2018 (Pa.

Super. filed July 9, 2020) (en banc); see also Pa.R.Crim.P. 907(4) (directing

the PCRA court to advise a defendant of his appellate rights by court order

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Appellant raises the following issues on appeal:

1. Whether the PCRA court erred by dismissing the [Amended]

[P]etition when [A]ppellant was denied his constitutional right to

effective assistance of counsel based on [plea] counsel’s failure to

protect his constitutional rights by failing to file and litigate a pre-

trial motion to suppress physical evidence[;]

2. Whether the PCRA court erred by dismissing the [Amended]

[P]etition when [A]ppellant’s constitutional right to substantive

and procedural due process was denied by [plea] counsel’s failure

to provide pre-trial discovery to him[; and]

3. Whether the PCRA court erred by dismissing the [Amended]

[P]etition when [A]ppellant’s guilty plea was unlawfully induced

based on [plea] counsel’s ineffectiveness.

Appellant’s Br. at 7 (reordered for ease of analysis).

We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)). We will not disturb the findings of the PCRA court unless there is no

support for those findings in the record. Commonwealth v. Wah, 42 A.3d

335, 338 (Pa. Super. 2012). However, we give no deference to the court’s

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

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when dismissing a PCRA petition without a hearing). Here, the PCRA court’s

Order dismissing Appellant’s PCRA Petition without a hearing did not advise

Appellant of his appellate rights as required by Rule 907(4). See PCRA Ct.

Order, 1/16/19. Thus, we decline to quash this appeal for violating Walker.

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Appellant contends that plea counsel was ineffective. We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

To overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his act or omission; and (3) petitioner suffered actual prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel’s error or omission, the result of the

proceeding would have been different.” Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the

petitioner fails to meet any one of these prongs. Jarosz, 152 A.3d at 350

(citing Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)).

1. Failure to Litigate a Motion to Suppress

In his first issue, Appellant asserts that plea counsel provided ineffective

assistance because she failed to litigate a pre-trial motion to suppress physical

evidence. See Appellant’s Br. at 11. Further, Appellant argues—for the first

time on appeal—that he specifically requested that counsel file a motion to

suppress, but that she failed to do so without explanation. See id.3

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3 The PCRA court offered little analysis explaining its decision rejecting

Appellant’s first and third issues. According to the court, “[Appellant] has not

established any way in which counsel was ineffective or how he was prejudiced

in accepting his generous plea deal. There is no reason to believe [Appellant’s]

counsel was ineffective. [Appellant’s] complaints are without merit.” PCRA

Ct. Op., 10/27/19, at 3.

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The failure to file a suppression motion may be evidence of ineffective

assistance of counsel. Commonwealth v. Watley, 153 A.3d 1034, 1044

(Pa. Super. 2016). “However, if the grounds underpinning the suppression

motion . . . are without merit, counsel will not be deemed to have been

ineffective in failing to so move[.]” Commonwealth v. Ransome, 402 A.2d

1379, 1382 (Pa. 1979) (citation omitted).

Instantly, although Appellant asserted generally that counsel provided

ineffective assistance for not litigating pre-trial motions, Appellant did not

identify in his PCRA Petition or Amended Petition any inculpatory evidence or

legal precedent that would establish grounds to support a suppression motion.

Without providing the PCRA court with any basis upon which to determine

whether a suppression motion should have been raised, Appellant could not

establish that counsel was ineffective for failing to raise such motion. Thus,

we discern no error in the PCRA court’s decision to dismiss this claim.4

2. Failure to Provide Discovery

Appellant also asserts that plea counsel was ineffective because she

failed to provide him with pre-trial discovery prior to his entering a negotiated

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4 Moreover, Appellant’s bald assertions first raised in his Brief to this Court—

that he specifically requested that counsel file a motion to suppress and that

counsel denied this request without explanation—lacks any support in the

record: Appellant did not include any allegation that he asked counsel to file

a motion to suppress in his Petition or Amended Petition and did not proffer

evidence that would support the allegation that counsel denied his alleged

request.

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plea. See Appellant’s Br. at 13. According to Appellant, this failure deprived

him of an inherent right to know the evidence against him. See id. No relief

is due.5

The Pennsylvania Rules of Criminal Procedure require that “the

Commonwealth shall disclose to the defendant's attorney all of the

following requested items or information, provided they are material to the

instant case.” Pa.R.Crim.P. 573(B)(1) (emphasis added; thereafter

enumerating examples of mandatory discovery). Citing this Rule, the PCRA

court concluded that, “under Pennsylvania law, defendants have no

independent right to their own copy of discoverable [evidence] in state court

criminal proceedings when represented by counsel[.]” PCRA Ct. Op. at 4.

We discern no error in the PCRA court’s conclusion. Indeed, Appellant

concedes that “a criminal defendant has no independent constitutional right

to his own copy of discoverable documents in a criminal proceeding when

represented by counsel.” Appellant’s Br. at 13. Further, Appellant has never

asserted that plea counsel failed to discuss the Commonwealth’s evidence with

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5Appellant casts these assertions in constitutional terms, suggesting without

cogent analysis that counsel’s failure “constitutes substantive and procedural

due process violations,” entitling him to collateral relief. Appellant’s Br. at 13.

However, Appellant fails to support this argument with citations to appropriate

constitutional standards or relevant precedent. Accordingly, we deem

Appellant’s constitutional claim waived and decline to address it. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007);

Pa.R.A.P. 2119(a).

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him prior to his entering a negotiated plea. To the contrary, at his plea

hearing, Appellant testified that he had sufficient time to discuss his plea with

counsel and that he was satisfied with the representation that he received.

See N.T. Plea, 8/7/17, at 16. Thus, for these reasons, we conclude that

Appellant’s underlying claim—that plea counsel erred by failing to provide

Appellant with pre-trial discovery—lacks arguable merit, and we discern no

error in the PCRA court’s decision to deny Appellant relief.6

3. Unlawfully Induced Plea

In his final issue, Appellant asserts that plea counsel provided ineffective

assistance by unlawfully inducing him to enter an involuntary and unknowing

plea. See Appellant’s Br. at 12. Appellant’s argument proceeds from the two

aforementioned allegations of ineffectiveness, i.e., counsel’s failures (1) to

litigate a motion to suppress and (2) to provide Appellant with discovery. See

id. According to Appellant, these alleged failures “left [him] with no factual

basis to make an intelligent and knowledgeable decision.” Id.

“[A] criminal defendant’s right to effective counsel extends to the plea

process, as well as during trial.” Wah, 42 A.3d at 338 (citations omitted).

Under the PCRA, “[a]llegations of ineffectiveness in connection with the entry

of a guilty plea will serve as a basis for relief only if the ineffectiveness caused

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6 We find persuasive the prevailing precedent in Pennsylvania’s federal courts

that counsel has no duty to provide a defendant with his own copy of discovery

materials. See, e.g., Williams v. Dark, 844 F.Supp. 210, 213 (E.D.Pa. 1993)

(“A criminal defendant has no independent right to his own copy of

discoverable documents . . . when these documents have been provided to

defense counsel.”).

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[the petitioner] to enter an involuntary or unknowing plea.” Fears, 86 A.3d

at 806–07 (citation omitted). “Where the defendant enters his plea on the

advice of counsel, the voluntariness of the plea depends on whether counsel’s

advice was within the range of competence demanded of attorneys in criminal

cases.” Wah, 42 A.3d at 338-39 (citations omitted). In this context, “to

establish prejudice, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Commonwealth v. Barndt, 74 A.3d

185, 192 (Pa. Super. 2013) (citations and internal quotation marks omitted).

Failure to establish any one of these elements would be fatal to

Appellant’s claim that counsel unlawfully induced him to plead guilty. See

Jarosz, 152 A.3d at 350. Here, Appellant has established none of them.

Appellant has not established that his plea was involuntary or

unknowing. Appellant argues that plea counsel’s alleged failures to file a

motion to suppress or supply him with discovery deprived Appellant of

“information necessary for a plea to be knowing and intelligent.” Appellant’s

Br. at 12. However, as addressed above, Appellant did not establish that

either of these claims warrant relief. See supra. Thus, these claims may not

provide a basis upon which to conclude that counsel unlawfully induced

Appellant to plead guilty.

Further, although Appellant asserts that counsel lacked a reasonable

basis for advising him to plead guilty, he fails to explain why plea counsel’s

advice was unreasonable. See Appellant’s Br. at 13. Regarding the four

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dockets relevant to this appeal, Appellant faced nearly thirty criminal charges,

many of which were felonies or serious misdemeanors arising from ongoing

criminal conduct spanning several months. During his plea hearing, Appellant

conceded that the Commonwealth accurately described his crimes. See N.T.

Plea at 15. In agreeing to plead guilty to only eight of those charges, with the

remaining charges nolle prossed by the Commonwealth, Appellant received a

considerable benefit. Therefore, absent a more comprehensive and

persuasive argument, we conclude that Appellant’s bald assertion that plea

counsel’s advice was unreasonable is insufficient to warrant relief.

Finally, Appellant has not established prejudice. At no point—either in

his Amended Petition to the PCRA court or in his argument to this Court—has

Appellant asserted that but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.

For all these reasons, Appellant’s claim that counsel unlawfully induced

him to plead guilty is untenable. We therefore conclude that the PCRA court

did not err in denying Appellant relief.7

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7 Finally, we note that it is well-settled that “[a] person who elects to plead

guilty is bound by the statements he makes in open court while under oath

and he may not later assert grounds for withdrawing the plea which contradict

the statements he made at his plea colloquy.” Commonwealth v. Pier, 182

A.3d 476, 480 (Pa. Super. 2018) (quoting Commonwealth v. Pollard, 832

A.2d 517, 523 (Pa. Super. 2003); Commonwealth v. Stork, 737 A.2d 789,

790-91 (Pa. Super. 1999). At his plea, Appellant testified that the

Commonwealth’s factual summary of his criminal conduct was accurate, that

he had sufficient time to discuss the charges with counsel and was satisfied

with counsel’s representation, and that he wished to plead guilty even after

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Conclusion

Appellant has not established grounds for relief on any of the claims he

has pursued on appeal. As we discern no error in the PCRA court’s decision

to deny Appellant relief, we affirm the Order of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/05/2021

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discussing with counsel factual and legal defenses that may be available to

him at trial. N.T. Plea at 15-18. These statements, made under oath before

the plea court, are binding upon Appellant and further undermine his claim, in

this collateral proceeding, that counsel unlawfully induced him to plead guilty.

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