The opinion
J-S48040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLIEFF BROWN :
:
Appellant : No. 2986 EDA 2019
Appeal from the PCRA Order Entered September 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001530-2008
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 5, 2021
Appellant Kylieff Brown (Appellant) appeals from the Court of Common
Pleas of Philadelphia County’s dismissal of his petition filed under the Post
Conviction Relief Act (PCRA).1 Appellant claims that the PCRA court erred in
denying his petition without an evidentiary hearing, as his claims of ineffective
assistance of plea counsel (for failing to investigate, failing to request a pre-
sentence investigation, and failing to call mitigation witnesses) are
meritorious. We affirm.
The PCRA court summarizes this case’s history as follows:
On May 31, 2007, [Appellant] was arrested and charged,
with various offenses, under two Bills of Information, including[:]
Possession With Intent to Deliver (PWID) and Criminal Conspiracy.
On May 29, 2012, [Appellant] entered into two negotiated guilty
pleas and was immediately sentenced, in accordance with the
terms of the plea agreement, to concurrent periods of probation
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1 42 Pa.C.S. §§ 9541-9546.
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of [three] years on each of the charges of PWID and Conspiracy.
This sentence was to be served consecutively to his negotiated
sentence of confinement on the other unrelated Bill of
Information. [CP-51-CR-0010456-2009.]
Subsequently, on June 13, 2016, at the conclusion of his
jury trial before the Honorable Rose Marie DeFino-Nastasi,
[Appellant] was convicted on the charge of PWID and was
sentenced on September 9, 2016, to a period of confinement of
40 to 80 months. [CP-51-CR-0001138-2014.] This conviction
resulted in a direct violation of the above referenced plea
agreement on the charges of PWID and [C]onspiracy.
On September 23, 2016, the Court found [Appellant] in
violation of probation and imposed consecutive sentences of
confinement in a state correctional facility of [two to four] years
on the PWID charge and [two to four] years on the Conspiracy
charge, resulting in an aggregate sentence of [four to eight] years,
to be served consecutively to any sentence he was then currently
serving. On October 24, 2016, [Appellant] filed a timely
counseled Notice of Appeal to [this Court] at 3398 EDA 2016, [and
this Court] affirmed his [judgment] of sentence on April 6, 2018.
On August 28, 2018, [Appellant] timely filed the instant pro
se PCRA Petition[.] On September 21, 2018, Zak T. Goldstein,
Esq., was appointed as counsel to represent [Appellant.] On
March 19, 2019, Mr. Goldstein filed an amended PCRA petition on
behalf of [Appellant]. On May 9, 2019, the Commonwealth filed
its motion to dismiss. On August 9, 2019, the Court [ ] issued its
notice, pursuant to [Pa.R.Crim.P. 907], advising Counsel and
[Appellant] that it intended to dismiss [Appellant’s] petition within
twenty days of issuance. On September 26, 2019, receiving no
response, the Court issued an Order dismissing [Appellant’s] PCRA
Petition as being without merit.
On October 21, 2019, [Appellant] timely filed the instant
Notice of Appeal to [this Court]. On October 22, 2019, [the PCRA
court] filed and served on [Appellant] an Order, pursuant to
[Pa.R.A.P. 1925(b)], directing [Appellant] to file and serve a
Statement of Errors Complained of on Appeal, within 21 days of
[the PCRA court’s] order. On November 12, 2019, [Appellant]
timely filed his [Statement].
PCRA Ct. Op., 1/29/20, at 1-3 (footnotes omitted).
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“When reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA court’s determination is supported
by evidence of record and whether it is free of legal error.” Commonwealth
v. Pew, 189 A.3d 486, 488 (Pa. Super. 2018) (citation omitted), appeal
denied, 200 A.3d 939 (Pa. 2019). There is no absolute right to a PCRA
hearing, and we review dismissal without a hearing “to determine whether the
PCRA court erred in concluding that there were no genuine issues of material
fact and in denying relief without an evidentiary hearing.” Commonwealth
v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en banc).
Appellant argues that plea counsel was ineffective in failing to
investigate prior to the violation of probation (VOP) hearing, failing to call
mitigation witnesses, and failing to request a pre-sentence investigation (PSI),
and that the court erred in dismissing Appellant’s PCRA petition without a
hearing because “[a]t a minimum, the PCRA court should have heard from the
[potential mitigation] witnesses before determining that their testimony would
not have made a difference in its sentencing decision.” Appellant’s Brief at
12.
The Commonwealth responds that although Appellant submitted three
letters from potential character witnesses, only one (a letter from Appellant’s
mother) stated that the witness was available and willing to testify at the VOP
hearing. Commonwealth’s Brief at 9. Further, the Commonwealth argues that
Appellant has made no argument as to how this proposed testimony would
have had any impact on the court’s sentencing decision. Id.
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The PCRA court reports that the proposed testimony “would have had
no effect on mitigating [its] imposition of the same sentence he would have
received but for his initial plea agreement, as the [PCRA court] was well aware
of [Appellant’s] character.” PCRA Ct. Op. at 10 (footnote and citation to record
omitted).
We first evaluate Appellant’s claim that the PCRA court erred in
dismissing his petition without a hearing, and then proceed to examine his
ineffectiveness claims. When evaluating a claim that a PCRA court erred in
denying a hearing prior to dismissal, we examine the PCRA issues in light of
the record “to determine whether the PCRA court erred in concluding that
there were no genuine issues of material fact and in denying relief without an
evidentiary hearing.” Commonwealth v. Springer, 961 A.2d 1262, 1264
(Pa. Super. 2008). “There is no absolute right to an evidentiary hearing on a
PCRA petition, and if the PCRA court can determine from the record that no
genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation
omitted). Rule 907 provides that PCRA petitions may be dismissed sans
hearing if the PCRA court determines “that there are no genuine issues
concerning any material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any further
proceedings . . . .” Pa.R.Crim.P. 907(1).
Here, the PCRA court’s observation that Appellant’s direct probation
violation would have resulted in the same sentence the court would initially
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have imposed absent Appellant’s plea deal supports its decision that a hearing
would have served no purpose, as the proposed testimony did not raise a
genuine issue of material fact. Our review of the record reveals that the
Commonwealth lobbied for a weightier sentence at Appellant’s VOP sentencing
hearing. See N.T., 9/23/16, at 12-18. Further, the judge was already familiar
with Appellant at this point, and thus character testimony was unlikely to alter
his perspective. Because the record reflects that the PCRA court put a
substantial amount of thought into its sentencing decision, and because
Appellant has not established that there is a genuine issue of material fact,
this argument is unavailing.
The remainder of Appellant’s claims sound in ineffective assistance of
plea counsel. Counsel is presumed to have been effective, and the petitioner
must bear the burden of proving ineffectiveness. Commonwealth v. Ligons,
971 A.2d 1125, 1137 (Pa. 2009). To prevail on such a claim, a petitioner
must establish that the underlying claim has arguable merit, counsel did not
have a reasonable basis for their actions or inaction, and the petitioner
suffered prejudice as a result of counsel’s deficient performance. Id. Failure
to establish any of the three prongs of this test is fatal to the claim. Id.
Here, our analysis of Appellant’s ineffectiveness claim regarding his
proposed mitigation testimony reveals that Appellant cannot establish
prejudice, as the PCRA court’s conclusion that the proposed testimony would
have had no impact is supported by the record. Thus, that claim fails. See
Ligons, 971 A.2d at 1137.
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Appellant next suggests that plea counsel was ineffective for failing to
request that the court order a PSI prior to its imposition of sentence.
Appellant’s Brief at 19-22. The PCRA court points out that a PSI had been
conducted as part of the sentencing proceedings for the case that triggered
the VOP proceedings. PCRA Ct. Op. at 9. Further, the same lawyer
represented Appellant in both proceedings. Id. at 8. Because counsel is
presumed effective, we must presume counsel was familiar with the
presentence report. Finally, the court seemed intent that Appellant should
receive an undoing of the “benefit of the bargain” of his plea deal, and also
seemed very familiar with Appellant. Thus, even if Appellant had successfully
borne the persuasive burden of establishing deficient performance, he cannot
establish prejudice. See Ligons, 971 A.2d at 1137.
Finally, Appellant makes a nebulous claim that plea counsel failed to
prepare for his VOP hearing, and should be found ineffective on that basis.
Upon review of the transcript, this Court cannot agree. Appellant’s Brief at
13. The PCRA court reports that “Counsel and [Appellant] clearly appeared to
be prepared to proceed with the hearing.” PCRA Ct. Op. at 8. The hearing
took place shortly after Appellant’s sentencing hearing before Judge DeFino-
Nastasi, and the two hearings involved substantially identical preparation and
argument. Because Appellant has not established prejudice, this broader
iteration of his ineffectiveness claim too must fail. See Ligons, 971 A.2d at
1137.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2021
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