Com. v. Brown, W.

J-A06011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

WILLIAM BROWN IV : No. 1425 WDA 2019

Appeal from the PCRA Order Entered August 14, 2019

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

No(s): CP-02-CR-0011189-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: May 18, 2021

The Commonwealth appeals from the post-conviction court’s August 14,

2019 order granting Appellee’s, William Brown IV, petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court

awarded Appellee a new trial based on its conclusion that his trial counsel had

acted ineffectively by not filing a motion to disclose the identity of a

confidential informant (“CI”) in this case. After careful review, we reverse the

PCRA court’s order.

The PCRA court summarized the facts of Appellee’s underlying

convictions, as follows:

In June of 2013, Sergeant James Newcomer of the Tarentum

Police Department began conducting an investigation with a [CI]

who had purchased heroin from Appellee. Sergeant Newcomer

and fellow officers utilized ground surveillance to conduct three

controlled buys from Appellee on June 16, 2013, June 17, 2013,

and June 19, 2013. ([N.T. Trial, 4/6/15, at] 28-30, 32, 40, 46).

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Specifically, on June 16, 2013, officers met with the [CI], provided

him with pre-recorded funds, and set up surveillance outside of

614 Roup Ave[nue] in Tarentum[,] where Appellee and his co-

defendant[, Djuan Williams,] were believed to be residing. ([Id.

at] 34). Sergeant Newcomer observed Appellee exit the

residence, get in a gray Dodge Dart, and drive to the prearranged

meeting area. Sergeant Newcomer followed Appellee to the

predetermined location where he observed Appellee pull up to the

[CI] and conduct a hand-to-hand transaction out the driver’s side

window. ([Id. at] 35). Sergeant Newcomer then followed

Appellee back to 614 Roup Avenue. ([Id. at] 36). Upon his return

to the police station, Sergeant Newcomer was given twenty stamp

bags from the controlled buy, which were submitted to the crime

lab and tested positive for heroin. ([Id. at] 37, 41).

On June 17, 2013, officers met with the [CI] and provided him

with pre-recorded funds. Sergeant Newcomer was positioned at

the meeting point, which was the same place as the day before,

and observed Appellee drive up to the [CI] with [Williams] in the

passenger seat[,] at which time [Williams] conducted a hand-to

hand transaction with the informant and Appellee then drove

away. ([Id. at] 42-43). Sergeant Newcomer then recovered

twenty stamp bags from the [CI] which were submitted to the

crime lab and tested positive for heroin. ([Id. at] 44-46).

On June 19, 2013, officers met with the [CI] and provided him

with pre-recorded funds. Officers set up surveillance and

observed Appellee leave the residence in the gray Dodge Dart. He

then met up with the [CI] who got into the vehicle, and the two

of them drove around the block. ([Id. at] 101-[]03, 110-[]11).

Thereafter, the [CI] exited the vehicle, and Appellee retuned to

the residence a few minutes later. ([Id. at] 111). The [CI] was

subsequently picked up by officers. ([Id. at] 101-[]03). Once in

the police vehicle, the [CI] turned over twenty stamp bags to the

officers. ([Id. at] 104). The narcotics were submitted to the

crime lab and tested positive for heroin. ([Id. at] 49-50). It was

later determined that the Dodge Dart had been rented by

[Williams’] paramour, Carrie Schaub. ([Id. at] 34-35).

On June 21, 2013, officers obtained a search warrant for the

residence at 614 Roup Ave[nue]. ([ Id. at] 33-34, 50). []

Appellee, [Williams], and Carrie Schaub were located in the

residence and detained. ([Id. at] 66-67). The search revealed

seven stamp bags of heroin in a DVD case, a backpack containing

ninety bricks of heroin, clonazepam, a firearm, $4,000 in cash,

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multiple cell phones, a digital scale, and a photocopy of Appellee’s

driver’s license and identification card. ([Id. at] 50-58, 112). The

stamp bags recovered during the execution of the search warrant

were submitted to the crime lab and tested positive for heroin.

([Id. at] 56). The stamp bags recovered during the execution of

the search warrant were consistent with the stamp bags recovered

from the controlled buys on June 16, 2013[,] and June 19, 2013.

([Id. at] 51-55). Appellee’s identification card was located in the

Dodge Dart parked in the driveway of the residence. ([Id. at]

96).

PCRA Court Opinion (PCO), 7/20/20, at 6-8.

Based on these facts,

Appellee was charged by criminal information (CC 201311189)

with one count of criminal use of a communication facility, one

count of person not to possess a firearm, one count of criminal

conspiracy, two counts of corrupt organization, two counts of

delivery of a controlled substance, three counts of possession with

intent to deliver, and three counts of possession of a controlled

substance.

On April 6, 2015, Appellee proceeded to a jury trial, at the

conclusion of which Appellee was found guilty of criminal use of a

communication facility, conspiracy, delivery of a controlled

substance, possession with intent to deliver a controlled

substance, and possession of a controlled substance. Appellee

was found not guilty of person not to possess a firearm and

corrupt organization.

On July 15, 2015, Appellee was sentenced … to an aggregate

[term of] six to twelve years[’] incarceration with a boot camp

recommendation.

On July 21, 2015, Appellee filed a post[-]sentence motion, and an

amended post[-]sentence motion on September 21, 2015. The

[t]rial [c]ourt denied Appellee’s post[-]sentence motions on

October 9, 2015.

Appellee filed a second post[-]sentence motion nunc pro tunc on

October 27, 2015. The Commonwealth filed a response on

November 5, 2015. The [t]rial [c]ourt denied Appellee’s motion

on November 5, 2015.

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On November 9, 2015, Appellee filed a Notice of Appeal. On

[September 26], 2016, the Superior Court affirmed the judgement

[sic] of sentence. [See Commonwealth v. Brown, 158 A.3d

187 (Pa. Super. 2016) (unpublished memorandum). Appellee did

not file a petition for allowance of appeal with our Supreme Court.]

On March 22, 2017, Appellee filed a timely PCRA [p]etition. On

July 24, 2017, PCRA counsel filed a motion to withdraw as

counsel[,] which was granted the following day and new counsel

was appointed. On March 23, 2018, counsel filed an [a]mended

PCRA [p]etition. On August 20, 2018, the Commonwealth filed an

[a]nswer to the PCRA [p]etition. On April 19, 2019, the parties

took the taped deposition of trial counsel, David Hoffman, Esq.,

due to health complications. On May 2, 2019, the [PCRA c]ourt

conducted a PCRA hearing. On August 14, 2019, the [PCRA c]ourt

granted Appellee’s PCRA [p]etition and granted Appellee a new

trial.

On September 13, 2019, the [Commonwealth] … filed this timely

appeal.

Id. at 1-5.

The PCRA court ordered the Commonwealth to file a Pa.R.A.P. 1925(b)

statement, and it timely complied. The court filed its Rule 1925(a) opinion on

July 20, 2020. Herein, the Commonwealth presents one issue for our review:

I. Did the [PCRA] court err in holding that … Appellee had asserted

and established all the requisite elements of a claim of ineffective

assistance of trial counsel based on counsel’s failure to file a

motion to disclose the identity of the Commonwealth’s [CI]?

Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

Before reviewing the merits of the Commonwealth’s issue, we must first

assess the PCRA court’s conclusion that the Commonwealth waived its claim

in its Rule 1925(b) statement. Therein, the Commonwealth stated its issue

as follows:

The [c]ourt erred in concluding that [Appellee] had established

that his trial counsel provided ineffective assistance in declining to

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seek disclosure of the identity of the Commonwealth’s [CI]. This

was the lone allegation contained in [Appellee’s] final [a]mended

[p]etition for Post-Conviction []relief and[,] thus[,] the only issue

properly before the [c]ourt. [Appellee] did not demonstrate that

he could have satisfied the applicable criteria to compel disclosure

of the [CI’s] identity under the facts and circumstances of his case

and[,] thus[, he] failed to establish that such a claim would have

been of arguable merit. He also failed to meaningfully allege,

much less prove, how he was supposedly prejudiced by the

absence of a motion for disclosure of the [CI’s] identity. His

assertion that the [CI’s] identity and/or testimony would have

been helpful to his defense was wholly conclusory and[,] thus

failed to satisfy the prerequisites for PCRA relief. His claim on this

issue was not developed at the evidentiary hearing beyond what

was contained in the petition.

Pa.R.A.P. 1925(b) Statement, 11/26/19, at 1-2 (unnumbered).

The PCRA court deemed the Commonwealth’s issue waived because it

was not concise or coherent, as required by Rule 1925(b). See PCO at 10.

In support of its decision, the court cited several cases, including

Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (finding

waiver where Ray’s pro se Rule 1925(b) statement “presented vague,

fragmented statements and phrases without specifying to which of his

convictions they pertained”), and Jiricko v. Geico Insurance Company, 947

A.2d 206, 213 (Pa. Super. 2008) (finding waiver where the appellant filed a

five-page Rule 1925(b) statement that was “an incoherent, confusing,

redundant, defamatory rant accusing Geico’s attorney and the trial court judge

of conspiring to deprive [the a]ppellant of his constitutional rights[,]” and

“[t]here [was] simply no legitimate appellate issue presented in [the

a]ppellant’s statement”). We find Ray and Jiricko easily distinguishable.

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Here, while the Commonwealth’s issue is admittedly longer than

necessary, it is not vague, incoherent, or confusing, as were the issues set

forth in Ray and Jiricko. Moreover, the Commonwealth raised only two

claims in its concise statement and, while it abandoned one of those issues on

appeal, there is nothing to suggest that the Commonwealth was impermissibly

attempting to overwhelm the PCRA court by filing a statement with “a

multitude of issues that [it did] not intend to raise and/or [could] not raise

before this Court.” Jiricko, 947 A.2d at 211 (citation omitted). Finally, the

PCRA court did not assert that the Commonwealth’s concise statement

precluded or hindered its ability to understand or meaningfully review the

issue before us on appeal. See id. (“[T]he statement must be ‘concise’ and

coherent as to permit the trial court to understand the specific issues being

raised on appeal.”). Accordingly, we disagree with the PCRA court that the

Commonwealth waived its issue, and we will proceed to reviewing the merits

of its argument.

The Commonwealth contends that the PCRA court erred by concluding

that Appellee’s trial counsel, Attorney Hoffman, acted ineffectively by not filing

a motion to disclose the identity of the CI. Preliminarily, we note that, “[t]his

Court’s standard of review from the grant or denial of post-conviction relief is

limited to examining whether the lower court’s determination is supported by

the evidence of record and whether it is free of legal error.” Commonwealth

v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v.

Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner

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claims that he or she received ineffective assistance of counsel, our Supreme

Court has directed that the following standards apply:

[A] PCRA petitioner will be granted relief only when he proves, by

a preponderance of the evidence, that his conviction or sentence

resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed effective, and to rebut that presumption,

the PCRA petitioner must demonstrate that counsel’s performance

was deficient and that such deficiency prejudiced him.”

[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.

2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...

(1984)]). In Pennsylvania, we have refined the Strickland

performance and prejudice test into a three-part inquiry. See

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

to prove counsel ineffective, the petitioner must show that: (1)

his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner

suffered actual prejudice as a result. Commonwealth v. Ali, …

10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of

these prongs, his claim fails.” Commonwealth v. Simpson, …

66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,

counsel’s assistance is deemed constitutionally effective if he

chose a particular course of conduct that had some reasonable

basis designed to effectuate his client’s interests. See Ali, supra.

Where matters of strategy and tactics are concerned, “a finding

that a chosen strategy lacked a reasonable basis is not warranted

unless it can be concluded that an alternative not chosen offered

a potential for success substantially greater than the course

actually pursued.” Colavita, … 993 A.2d at 887 (quotation and

quotation marks omitted). To demonstrate prejudice, the

petitioner must show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Commonwealth v.

King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation

marks, and citation omitted). “‘[A] reasonable probability is a

probability that is sufficient to undermine confidence in the

outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting

Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)

(citing Strickland, 466 U.S. at 694…)).

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Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

In the case sub judice, the PCRA court offered the following rationale to

support its decision that Attorney Hoffman acted ineffectively by not moving

for the disclosure of the CI’s identity:

With respect to motions to seek disclosure of the identity of the

[CI], a court has discretion to require the Commonwealth to reveal

the names and address of all eyewitnesses, including [CI]s. While

the Commonwealth possesses a qualified privilege to withhold the

identity of a confidential source, a defendant can overcome that

privilege by establishing, pursuant to Rule 573(B)(2)(a)(i) of the

Pennsylvania Rules of Criminal Procedure, that the information

sought is material to the preparation of the defense and that the

request is reasonable. See Commonwealth v. Roebuck, 681

A.2d 1279, 1283 (Pa. 1996). After such a showing, the court must

then exercise its discretion to determine whether the information

should be revealed. See Commonwealth v. Bing, 713 A.2d 56,

58 (Pa. 1998). Further, a defendant who seeks disclosure of the

[CI’s] identity is not expected to predict what the informer would

testify to if called as a witness; rather, all the defendant must

establish is the reasonable possibility that the informer could give

evidence exonerating defendant[.] Roebuck, [681 A.2d] at

1283.

Here, the evidence presented at the PCRA hearing, which

incorporated the taped deposition testimony of trial counsel as

Exhibit A-1, established that trial counsel was ineffective for failing

to seek disclosure of the [CI’s] identity. During the deposition,

trial counsel conceded that he should have filed a motion to

withdraw as counsel prior to trial but failed to do so. Further, trial

counsel acknowledged on multiple occasions his knowledge of

Appellee’s dissatisfaction with his performance and Appellee’s

repeated requests to file certain pretrial motions, including a

motion seeking disclosure of the [CI] due to his claim of mistaken

identity. In fact, Appellee was forced to file pro se motions,

including a motion to seek disclosure of the [CI’s] identity, as a

result of trial counsel’s repeated failure to do so. However, trial

counsel failed to even address the filed pro se motion with the

[t]rial [c]ourt.

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Additionally, trial counsel conceded that he believed the credibility

of the [CI] was important, yet was unable to provide a sufficient

answer for his failure to file the motion for disclosure of the [CI’s]

identity, or any motions for that matter. Further, the search

warrant in this case referenced a “Wonka[,]” who was alleged to

be Appellee, and trial counsel conceded he attempted to test the

trial identification of Appellee as “Wonka[,]” yet had no reasonable

explanation for failing to seek the disclosure of the [CI] prior to

trial in an attempt to bolster his argument that Appellee had been

misidentified.

The … [c]ourt finds that Appellee established the requisite criteria

to compel disclosure of the [CI’s] identity. Commonwealth v.

Payne, 656 A.2d 77, 79-80 (Pa. 1994) (holding that the

Commonwealth was required to disclose the informant’s identity

to defendant where the defense was mistaken identity). The

[PCRA c]ourt further finds, that based upon the testimony

presented at the PCRA hearing[,] including the testimony

presented in Exhibit A-1 that: (1) there is arguable merit to …

Appellee’s underlying claim as to counsel’s ineffectiveness; (2)

trial counsel’s actions lacked any reasonable basis; and (3) trial

counsel’s actions clearly prejudiced Appellee. See Fletcher, [986

A.2d] at 771.

PCO at 12-15 (footnotes and citations to record omitted).

After carefully reviewing the record in this case, we must disagree with

the PCRA court’s decision. Initially, the PCRA court’s reliance on the fact that

Appellee was unhappy with defense counsel’s decision not to file pretrial

motions, and that Appellee filed several pro se motions himself, does not

establish that counsel acted ineffectively. Moreover, to support its conclusion

that the disclosure of the CI’s identity was warranted in this case, the PCRA

court cited our Supreme Court’s decision Payne, which we find

distinguishable. In that case, the CI and an officer were present when Payne

sold drugs to the CI. Payne, 656 A.2d at 77-78. At trial, the identity of the

CI was not revealed, and the officer’s testimony was the only evidence

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establishing Payne’s identity as the drug dealer. Id. at 78. Payne’s defense

was one of mistaken identity, and he testified that he had never met the officer

or sold drugs to the CI. Id. In concluding that these facts required disclosure

of the CI’s identity, our Supreme Court stressed that “[f]undamental

requirements of fairness mandate disclosure if the informer is the only

material witness besides the single police officer.” Id. at 79. The Court

observed, however, that “[w]here other corroboration of the officer’s

testimony exists, disclosure of the informant’s identity is, of course, not

necessarily required.” Id. (emphasis added).

In this case, Sergeant Newcomer testified that he witnessed Appellee

engage in a hand-to-hand drug transaction with the CI on June 16, 2013, and

that Appellee was also present when his co-defendant, Williams, conducted a

hand-to-hand transaction with the CI on June 17, 2013. See N.T. Trial,

4/6/15-4/7/15, at 32, 34-36, 40, 43. In addition to Sergeant Newcomer’s

testimony, Sergeant Joshua Acre testified that he surveilled the controlled buy

on June 19, 2013, and he observed the CI get into a vehicle with only one

other person in it — the driver, whom he identified in court as Appellee. Id.

at 101, 102-03. Sergeant Acre followed the vehicle a short distance, after

which it stopped and the CI got out. Id. at 103-04. Sergeant Acre then picked

up the CI, who turned over two bundles of heroin to the officer. Id. at 104.

Sergeant Ryan Hanford also testified for the Commonwealth, stating

that he saw Appellee, whom he identified in court, leave the Roup Avenue

house and get into a gray Dodge car after the CI placed a call to buy narcotics

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on June 19, 2013. Id. at 110. Approximately ten minutes later, Sergeant

Hanford saw Appellee return to the house. Id. at 111. In addition to the

testimony of these officers, the Commonwealth presented evidence that

drugs, cash, and a scale were recovered during the search of the Roup Avenue

home where Appellee was staying.

Clearly, this case is distinguishable from Payne, as the Commonwealth

was not relying solely on identification testimony of a single officer.

Additionally, this Court has already previously concluded, in co-defendant

Williams’ appeal from the denial of post-conviction relief, that the CI’s

testimony in this case was unnecessary. See Commonwealth v. Williams,

No. 497 WDA 2019, unpublished memorandum at 7-8 (Pa. Super. filed April

21, 2020). In Williams, we reasoned:

Multiple officers testified during trial that they personally

witnessed the CI’s drug buys from [Williams] and recovered

baggies of heroin from the CI after the buys. Some of these bags

were stamped “Yankees,” the same label found on 4,500 bags of

heroin that officers seized from the residence in which they found

[Williams] on June 21, 2013. The officers also recovered a .22

caliber rifle, $4,000.00 in cash, a digital scale and cell phones from

this residence, further clear indicia of a drug-selling operation.

Given this evidence, the Commonwealth did not need the CI’s

testimony to establish [Williams’] guilt.

Id. We agree with the Commonwealth that the evidence against Appellee

“was at least as strong as that against Williams.” Commonwealth’s Brief at

26. Thus, Appellee’s underlying claim that Attorney Hoffman should have filed

a motion to compel the disclosure of the CI’s identity lacks arguable merit, as

we are unconvinced that such a motion would have been granted.

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We also note that the PCRA court fails to address the fact that Sergeant

Newcomer testified at trial that police had searched for the CI but could not

locate him. See N.T. Trial at 59. Therefore, even had counsel filed a

successful motion to compel the disclosure of the CI’s identity, we are

unconvinced that Appellee could have located the CI to call as a witness at

trial.

Finally, we agree with the Commonwealth that Appellee has not

established he was prejudiced by the omission of the CI’s testimony. Even

had the CI taken the stand and testified that Appellee was not the individual

who sold him drugs, we are not convinced that that testimony would have

been deemed credible in light of the other evidence of Appellee’s guilt, which

the Commonwealth aptly summarizes, as follows:

[Appellee] was seen leaving the 614 Roup Avenue address by law

enforcement surveillance personnel immediately after the CI had

telephonically arranged a heroin transaction on three different

occasions, then was observed by police making transactions, once

while in the company of [his] codefendant…, with the CI who had

been fully searched before the buy. The CI then turned over to

the police heroin that he had gotten from [Appellee] in the

transactions. When the Roup Avenue house was searched,

[Appellee] himself was physically found there, along with his

driver’s license, ID card, photocopies of the same, and a large

quantity of packaged heroin sporting markings consistent with

those on the bags obtained in two (2) of the three (3) controlled

buys. In short, the evidence against [Appellee] was overwhelming

and the identifications of him made by the police were

subsequently corroborated by his undisputed physical presence at

the house they testified that they had seen him leave in order to

deliver heroin to the CI at the agreed-upon times and places.

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Commonwealth’s Brief at 25. In light of this evidence, we cannot conclude

that, had the CI taken the stand, he would have offered credible, exculpatory

testimony that would have changed the jury’s verdict.

Accordingly, we conclude that the PCRA court erred by finding that

Attorney Hoffman acted ineffectively by not filing a motion to compel the

disclosure of the CI’s identity. Appellee did not prove that such a motion

would have been granted, or that the CI would have been available to testify

even had his identity been disclosed. Appellee also failed to prove that the

outcome of his trial would have been different had the CI taken the stand.

Thus, no relief is due.

Order reversed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2021

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