Com. v. Brown, J.

J-S35030-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JORDON SCOTT BROWN :

:

Appellant : No. 242 MDA 2021

Appeal from the PCRA Order Entered January 22, 2021,

in the Court of Common Pleas of Huntingdon County,

Criminal Division at No(s): CP-31-CR-0000577-2015.

BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 16, 2022

Jordon Scott Brown appeals from the order denying his first petition filed

pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

The PCRA court detailed the pertinent facts leading to Brown’s

convictions as follows:

On the night of November 28, 2015, [Brown] engaged in

a drug-fueled, paranoid, and quasi-suicidal episode in

which, after a fight with his girlfriend, he set fire to her

residence, fired two shots from his shotgun at Pennsylvania

State Police troopers outside, exited the residence and got

into an armed confrontation with those troopers, and only

finally complied with their commands when his brother,

standing behind the troopers and begging him to put the

gun down, was somehow able to get through to [Brown] in

his drug-induced daze. The shots were fired in the direction

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S35030-21

of a neighbor’s home, which was occupied by a family with

two children, and who were required to evacuate their home

in the middle of the night, after being shot at, because of

the risk of the fire started by [Brown] spreading to their

home.

The responding officers that evening were troopers

Michael Harris and Lance Howell. They were dispatched to

the residence (a mobile home) pursuant to a 911 call from

[Brown’s] then girlfriend, Rachel Ann Labus, who reported

that she was in the trailer and that [Brown] was suicidal and

had a gun.

Both troopers were in uniform and were in a marked PSP

patrol vehicle. Dispatch lost contact with Ms. Labus after

the initial call, and as the troopers arrived on scene they did

not know whether she was still in the trailer. Dispatch did

relay that prior to losing contact with her she said she

believed she had heard [Brown] fire a shot.

The troopers parked on the road, approximately three

hundred feet from the trailer, and began their approach.

Both were carrying long guns due to the nature of the call,

and there was very little cover available in the area around

the trailer. When they were approximately fifteen yards

from the trailer Trooper Harris heard a shot and saw a

muzzle flash from the rear east window. The shot struck

near where Trooper Harris was standing.

After the first shot was fired the troopers began moving

to a shed near the driveway, attempting to use it for cover.

[Brown] fired a second shot at the troopers as they were

seeking cover. The second shot struck a wood fence near

where Trooper Howell was standing. The fence is on the

property line, and on the other side of the fence, in the

direction that [Brown] fired, is the residence of Kenneth

Wise, Sr., Tonya Wise, and their two minor children, C.W.

and K.W. (then approximately ages fifteen and ten years

old, respectively). The Wise family was home, in their

respective bedrooms, at the time the shot was fired. The

distance between where [Brown] fired from and where

Kenneth and Tonya Wise were sleeping is less than twenty-

five yards.

Once at the shed the troopers repeatedly identified

themselves and gave commands to [Brown], shouting

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“State Police” and telling him to come out with his hands up.

[Brown] responded with “Go away State Police!” and “State

Police get the hell out of here!”

Approximately ten seconds after the above exchange,

Trooper Harris saw smoke coming from the same window

from which [Brown] had shot at him. The fire grew quickly,

as soon Trooper Harris could hear crackling coming from the

trailer, and the smoke coming out of the window became

flames. This increased the stress and anxiety placed upon

the troopers, because they did not know whether Ms. Labus

or her children were in the trailer with [Brown], and the fire

was growing rapidly. The troopers continued to identify

themselves and command [Brown] to exit the trailer with

his hands up.

Through the smoke, Trooper Harris saw that [Brown] had

exited the trailer and was standing on the porch, facing the

front door of the trailer, holding a shotgun in the “low ready”

position. [Brown] appeared to be talking to someone or

something, but due to the smoke Trooper Harris could not

tell if anyone was on the porch with [Brown] or if he was

forcing Ms. Labus and her children to stay in the trailer as it

burned. Trooper Harris told [Brown] to drop the gun, and

then moved from behind cover to close the distance

between himself and [Brown], both to gain a better view

and to be in a better shooting position if [Brown] forced the

troopers to use lethal force. Both troopers repeatedly told

[Brown] to drop his gun.

The standoff continued for a short time, with the troopers

moving closer across open ground to try to determine

whether [Brown] was holding anyone hostage in the burning

trailer, while also placing themselves at great risk should

[Brown] turn and shoot them.

Finally, Trooper Harris heard a voice behind him and

Trooper Howell saying to [Brown] “What are you doing, it’s

the State Police.” [Brown] finally responded to this voice,

and dropped the shotgun. One of [Brown’s] dogs ran out of

the trailer and down the steps, toward the troopers and the

voice behind them. [Brown’s other dog was hiding in one of

the bedrooms in the trailer, and was killed by the fire.]

[Brown] then ran down the steps, laid on the ground after

being commanded to by Trooper Harris, and was handcuffed

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by Trooper Howell, as Trooper Harris kept [Brown] covered

with his long gun.

The troopers asked [Brown] whether anyone was still in

the trailer, but his speech was slurred and

incomprehensible. The person who had shouted to [Brown]

from behind the troopers came forward and was identified

as [Dustin Brown, Brown’s brother]. [Dustin] told the

troopers that Ms. Labus and the children were safe and were

at another location. The fire had spread so quickly that the

trailer was now fully involved, so the troopers secured

[Brown] in their patrol vehicle and requested fire

department response.

[Dustin] told the troopers that he had come to the trailer

after getting Facebook messages about what was happening

with [Brown].

Trooper Howell was finally able to contact Ms. Labus, who

was at a nearby residence. She confirmed that she was

safe, and that her children were not in the trailer, but were

safe with her grandmother. Trooper Howell remained with

[Brown] while Trooper Harris went next door to the Wises’

residence to get them to evacuate, due to the risk of the fire

spreading to their residence. The Wises had taken cover in

their basement upon hearing the shots fired by [Brown].

PCRA Court Opinion, 1/22/21, at 3-7 (formatting altered; citations and

footnote omitted).1

The PCRA court further summarized the police interview with Brown:

Trooper Sean Hoffman interviewed [Brown] a few hours

after the incident. At that time, [Brown] said that he had

been using bath salts for two or three weeks, approximately

one to one and one-half grams a day. His recollection of

events was vague. He said that Ms. Labus had told him that

“some guys” were coming to the trailer to “hit it.” He

____________________________________________

1 The PCRA court summarized these facts based upon victim/witness

statements, the criminal complaint, and the affidavit of probable cause, as

well as testimony from the sentencing and the PCRA hearings.

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remembered “pulling the trigger with the shotgun out the

window,” and “believed that he saw someone outside and

shot.” [Brown] said that he lit the fire “to attract attention

and get some help.” He also said that he was carrying his

shotgun when he exited the trailer because he did not know

who was coming for Ms. Labus and he thought she was

“outside using more drugs.”

PCRA Court Opinion, 1/22/21, at 7 (formatting altered; citation omitted).

On September 2, 2016, Brown entered negotiated guilty pleas to

attempted manslaughter of a law enforcement officer, graded as a first-degree

felony, arson, danger of death or bodily injury, graded as a first-degree felony,

and recklessly endangering another person, graded as a second-degree

misdemeanor. The plea agreement further capped the minimum aggregate

sentence at 18½ years. In exchange, the Commonwealth agreed to dismiss

the remaining 13 counts, which included four additional first-degree felonies.

Prior to sentencing, Brown filed a motion to withdraw his guilty plea, which

the trial court denied. Thereafter, the trial court sentenced Brown to an

aggregate sentence of 18 to 36 years of imprisonment.

Brown timely appealed to this Court and challenged the discretionary

aspects of his sentence. In a non-precedential decision filed on November 30,

2017, this Court affirmed Brown’s judgment of sentence, and our Supreme

Court denied his petition for allowance of appeal on October 11, 2018.

Commonwealth v. Brown, 181 A.3d 459 (Pa. Super. 2017), appeal denied,

195 A.3d 566 (Pa. 2018).

Appointed counsel filed a PCRA petition on October 11, 2019, and

subsequently retained PCRA counsel filed the amended petition at issue on

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December 23, 2019. The PCRA court held an evidentiary hearing on February

21, 2020, at which plea counsel, appellate counsel, and Dustin Brown testified.

On September 30, 2020, the court held another evidentiary hearing at which

Brown testified. By order entered January 22, 2021, the PCRA court denied

Brown’s amended petition. Accompanying the court’s order was an opinion

with detailed factual findings regarding the incident, see supra, as well as

detailed factual findings and credibility determinations regarding the

testimony from the PCRA hearings. This appeal followed. Both Brown and

the PCRA court have complied with Pa.R.A.P. 1925.

Brown raises the following seven issues, which we have reordered for

ease of discussion:

1. Is [plea] counsel ineffective in advising [Brown] to enter

a plea of guilty to an offense which is not viable as

defined?

2. Must counsel make a reasonable investigation by

speaking to available witnesses or arranging for a private

investigator when he becomes aware, or should become

aware, of evidence and witnesses which may contradict

the Commonwealth’s case?

3. Did the PCRA court err in denying the motion for a new

trial on the charge of arson endangering others?

4. Did the PCRA court err in finding that counsel’s

ineffectiveness did not merit relief by holding that

[Brown] was not prejudiced by any of his prior counsel’s

errors?

5. Are accurate sentencing guidelines relevant when a plea

agreement calls for a “capped” minimum sentence?

6. May the reason for a sentencing being placed in or above

the aggravated range of sentencing guidelines rely on the

fact that the victim is a law enforcement officer, when

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that offense may only be committed against a law

enforcement officer?

7. Did the PCRA court err in sua sponte changing the offense

of conviction by directing that the subsection which was

charged from the initiation of the case be amended, and

treating the same as a clerical error?

Brown’s Brief at 4 (excess capitalization omitted).

Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the

findings of the PCRA court and the evidence on the record of the

PCRA court's hearing, viewed in the light most favorable to the

prevailing party. Because most PCRA appeals involve questions

of fact and law, we employ a mixed standard of review. We defer

to the PCRA court's factual findings and credibility determinations

supported by the record. In contrast, we review the PCRA court's

legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

Brown’s first three issues allege the ineffectiveness of plea and appellate

counsel.2 To obtain relief under the PCRA premised on a claim that counsel

was ineffective, a petitioner must establish, 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. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

“Generally, counsel’s performance is presumed to be constitutionally

____________________________________________

2 Although, as phrased, Brown’s third issue does not challenge plea counsel’s

ineffectiveness, it is clear from the supporting argument that this issue

addresses another claim regarding plea counsel’s advice to enter a guilty plea.

See infra.

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adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) counsel’s

act or omission prejudiced the petitioner. Id. at 533.

Regarding claims of ineffectiveness in relation to the entry of plea, we

further note:

Ineffective assistance of counsel claims arising from the

plea bargaining-process are eligible for PCRA review.

Allegations of ineffectiveness in connection with the entry of

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

ineffectiveness caused the defendant to enter into an

involuntary or unknowing plea. 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.

The standard for post-sentence withdraw of guilty pleas

dovetails with the arguable merit/prejudice requirements

for relief based on a claim of ineffective assistance of plea

counsel, . . . under which the defendant must show that

counsel’s deficient stewardship resulted in a manifest

injustice, for example, by facilitating the entry of an

unknowing, involuntary, or unintelligent plea. This standard

is equivalent to the “manifest injustice” standard applicable

to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

Moreover, “[o]ur law presumes that a defendant who enters a guilty

plea was aware of what he was doing,” and “[h]e bears the burden of proving

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otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003) (citations omitted).

The longstanding rule of Pennsylvania law is that a

defendant may not challenge his guilty plea by asserting that

he lied while under oath, even if he avers that counsel

induced the lies. A person who elects to plead guilty is bound

by the statements he makes in open court while under oath

and may not later assert grounds for withdrawing the plea

which contradict the statements he made at his plea colloquy.

Id. On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.

Super. 2011).

In his first and second issues, Brown asserts that plea counsel was

ineffective because he “did not investigate [Brown’s] case, advised him to

enter a plea of guilty to a charge that was not viable, and advised him that

the deadly weapon enhancement would not apply.” Brown’s Brief at 11. In

his third issue, Brown claims that plea counsel was ineffective for advising him

to plead guilty to arson endangering others “as no individuals were

endangered as a result of [Brown] burning up some clothing in a trash can.”

Id. at 19 (emphasis omitted). We address each claim separately.

In his first issue, Brown asserts that plea counsel was ineffective for

advising him to enter a plea of guilty to attempted manslaughter of a law

enforcement officer. Brown claims that this was a “non-viable charge,”

because it required him to possess “the specific intent to kill the Troopers

negligently or accidently.” Id. at 11. According to Brown, “[t]he criminal

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attempt, which requires a specific intent, was not viable under the facts and

circumstances of the case.” Id.

The PCRA court found no merit to this claim because the crime to which

Brown pled guilty is a viable charge in Pennsylvania. The court first recognized

the parameters of Brown’s claim:

[Brown’s] argument is based on the interplay between 18

Pa.C.S. § 901, which establishes the mens rea necessary to

find a defendant guilty of attempting to commit an offense,

and the elements of the offense of Manslaughter of a Law

Enforcement Officer in the First Degree set forth in 18

Pa.C.S. § 2507(c). However, his argument ultimately fails,

as it ignores both controlling caselaw and basic tenets of

statutory interpretation.

PCRA Court Opinion, 1/22/21, at 25-26.

The PCRA court then recognized that criminal attempt requires specific

intent and that its application is limited to crimes which also require a specific

intent:

Under § 901(a), “[a] person commits an attempt when,

with intent to commit a specific crime, he does any act

which constitutes a substantial step toward the commission

of that crime.” (Emphasis added). This necessarily limits

liability for criminal attempt to those offense requiring a

mens rea of specific intent, because a person cannot

intentionally commit an unintentional offense (such as one

requiring a mens rea of recklessness or gross negligence).

See Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.

Super. 2004) (attempted second and third degree murder

are not viable offenses under Pennsylvania law, as such

offenses only occur where the victim’s death is the

unintentional result of a criminal act; § 901 requires that

the Commonwealth prove the defendant had the specific

intent to kill the victim) ([citations omitted)].

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Id. at 26.

The court noted the elements of the underlying offense, which is part of

a criminal statute that provides varying degrees of crimes for the criminal

homicide of a law enforcement officer, including murder and manslaughter.

That statute reads, in pertinent part, as follows:

§ 2507. Criminal homicide of law enforcement officer

***

(c) Manslaughter of a law enforcement officer in the

first degree.—A person commits a felony in the first degree

who does any of the following:

(1) Without lawful justification kills a law enforcement

officer while in the performance of duty and with knowledge

that the victim was a law enforcement officer, if at the time

of the killing:

(i) the person is acting under a sudden and intense

passion resulting from serious provocation by the victim

killed; or

(ii) the person is acting under a sudden and intense

passion resulting from serious provocation by another

individual whom the actor endeavors to kill, but the person

negligently or accidentally causes the death of the victim.

***

18 Pa.C.S.A. § 2507(c).

The PCRA court then provided the following analysis of Brown’s claim:

The criminal information charged [Brown] with, and he

ultimately pleaded guilty to and was sentenced for,

committing the offense under § 2507(c)(1)(ii). [PCRA]

counsel now looks to the “negligently or accidentally causes

the death of the victim” portion of this subsection to argue

that Manslaughter of a Law Enforcement Officer in the First

Degree is not a specific intent offense, and that therefore

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[Brown’s] sentence for attempting to commit this offense is

illegal. To say that such an interpretation of § 2507(c)(1)(ii)

is incorrect does not even begin to encompass the

magnitude of its erroneousness.

[Brown’s] argument plucks one phrase from § 2507(c)

and attempts to use it to negate the entirety of the

remainder of the statute. This cannot be done. Words of a

statute must be interpreted in context, they cannot be

viewed in isolation.

Looking at the larger context, § 2507, titled “Criminal

Homicide of Law Enforcement Officer,” was enacted in 2008.

Subsections (a) and (b) address murder of a law

enforcement officer, and [subsections] (c) and (d) address

manslaughter. With respect to manslaughter, it is clear that

the General Assembly intended subsection (c) to address

situations in which the offense otherwise would be Voluntary

Manslaughter under 18 Pa.C.S. § 2503, and subsection (d)

to address situations in which the offense would otherwise

be Involuntary Manslaughter under 18 Pa.C.S. § 2504. Both

of these statutes were in effect well before 2008, and the

only differences between the elements of the offenses set

forth in § 2507(c) and (d) and the elements of the offenses

set forth in §§ 2503 and 2504 are that in each instance, the

defendant killed “a law enforcement officer in the

performance of duty” and knew at the time the victim was

a law enforcement officer.

PCRA Court Opinion, 1/22/21, at 27-28 (citations and footnotes omitted).

Ultimately, the PCRA court explained why Brown’s claim lacked merit:

With the understanding that Manslaughter of a Law

Enforcement Officer in the First Degree is essentially

Voluntary Manslaughter, but with a law enforcement officer

as the victim, it is relatively easy to dispense of [Brown’s]

claim. It has been clear that Attempted Voluntary

Manslaughter is a viable offense under the laws of the

Commonwealth since at least 1983. See Commonwealth

v. Garner, 461 A.2d 302, 303-304 (Pa. Super. 1983)

(affirming the trial court’s finding that Attempted Voluntary

Manslaughter exists as an offense in the Commonwealth,

since Voluntary Manslaughter “is an intentional killing, but

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without the malice required to raise the degree of culpability

to that of murder.”; see also Commonwealth v. Burns,

765 A.2d 1144, 1151 (Pa. Super. 2000) (upholding the

defendant’s conviction and aggravated range sentence for

Attempted Voluntary Manslaughter under 18 Pa.C.S. §§

901(a), 2503(a)(1)).

What [Brown’s] focus on the “negligently or accidentally”

portion of § 2507(c)(1)(ii) ignores is that this subsection

addresses transferred intent situations. The classic

transferred intent example is that A intends to shoot B, but

misses, and hits and kills C instead. The level of intent A

possessed with respect to attempting to shoot B is

transferred to the killing of C, so if A fired his shot intending

to kill B under circumstances that would constitute voluntary

manslaughter, he is guilty of voluntary manslaughter in

regard to his killing of C. This is where the “negligently or

accidentally” language comes into play, because A always

intend to commit voluntary manslaughter, he simply killed

the wrong individual. Had A’s intent in killing C had been

anything other than negligence or accident, there would be

no need for transferred intent, because by definition, he

would have fired his shot intending to kill C in the first place.

This is thus a very different situation than if the

Commonwealth had charged [Brown] with Attempted

Manslaughter of a Law Enforcement Officer in the Second

Degree, which likely does not constitute a viable offense.

Id. at 29-30 (footnotes omitted).3

Our review of the record and pertinent case law supports the PCRA

court’s conclusion. See, e.g., Commonwealth v. Tolbert, 670 A.2d 1172,

1179-80 (Pa. Super. 1995) (defining voluntary manslaughter as the

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3 This crime mirrors the crime of involuntary manslaughter: “A person

commits a felony of the second degree who, as a direct result of the doing of

an unlawful or lawful act in a reckless or grossly negligent manner, causes the

death of a law enforcement officer while in the performance of duty and the

person knew or should have known the victim was a law enforcement officer.

18 Pa.C.S.A. § 2507(d).

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intentional killing of another without malice but in sudden heat of passion

brought on by legal provocation).

Brown’s claims to the contrary are unavailing. He first maintains the

same argument regarding the non-viability of the offense that the PCRA court

debunks. See Brown’s Brief at 17-18. Moreover, Brown’s answers during the

guilty plea colloquy refute his claims that he was not “instructed to the mens

rea of the offense to which he entered a plea of guilty,” and that “neither

[plea] counsel nor the [trial] court adequately explained the definition of the

offense” to him. Brown’s Brief at 18.4 Pollard, supra. Finally, because the

offense to which he pled guilty is viable, his illegal sentence claim fails.

In his second issue, Brown challenges plea counsel’s failure to

investigate the incident fully by interviewing his brother, Dustin. To establish

that trial counsel was ineffective for failing to investigate and/or call a witness

at trial, a PCRA petitioner must demonstrate that:

(1) the witness existed; (2) the witness was available; (3)

trial counsel was informed of the existence of the witness or

should have known of the witness’s existence; (4) the witness

was prepared to cooperate and would have testified on

appellant’s behalf; and (5) the absence of the testimony

prejudiced appellant.

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4 Although Brown mentions plea counsel’s alleged failure to advise him that

the deadly weapon enhancement would be applied, he provides no further

argument. We do note that the PCRA court did not find his PCRA hearing

testimony regarding this issue to be credible. See PCRA Court Opinion,

1/22/21, at 25. Brown does reprise this claim as part of his sentencing

argument. See Brown’s Brief at 26.

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Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation

omitted). Brown asserts that Dustin “was an available witness who had

valuable testimony to provide,” which would have corroborated his version of

the incident. Brown’s Brief at 11. Brown further contends that Dustin was an

“available and reluctantly willing witness, but no one spoke to him about the

case until the PCRA proceedings were pending.” Id.

The PCRA court found that Brown’s claim had arguable merit because

plea counsel admitted that he knew Dustin was present on the night of the

incident but did not hire an investigator or otherwise interview him.

Nevertheless, the court found that plea counsel had a reasonable basis for not

doing so:

[Plea counsel] had a reasonable strategic basis for

proceeding in the manner he did. His focus during the

entirety of the matter was to negotiate a plea agreement

that would, as he put it, give [Brown] a chance of paroling

out of prison while he was still young enough to have a life,

rather than serving a de facto life sentence. [Plea counsel]

knew [the trial court] well, knew the District Attorney well,

knew Huntingdon County juries well, and knew the primary

victim and witness for the Commonwealth—Trooper Harris—

well. This gave [plea counsel] a well-informed opinion of

[Brown’s] chances if the charges went to trial, and the

sentences he would likely receive if convicted. He chose,

after consultation with [Brown], to focus on obtaining the

best plea deal possible. Had [plea counsel hired] an

investigator and begun digging, he would have risked the

momentum he had built toward such a deal. Further,

knowing Trooper Harris (and other troopers involved in the

matter) and his reputation for truthfulness and credibility on

the witness stand, it would have been obtuse of him to

believe that [Dustin] would have testimony or evidence that

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would both contradict the totality of the evidence presented

by the Commonwealth and be wholly believed by a jury.

Even if [Dustin] had believable testimony that contradicted

only the evidence regarding [Brown’s] “Fuck you pigs!” and

“Go away State Police!” statements, the evidence for the

remaining charges was strong enough that [Brown] almost

assuredly be convicted and receive a sentence longer than

what was negotiated under the plea deal. As for the final

prong [of the ineffectiveness test], had [plea counsel]

interviewed [Dustin] and obtained testimony from him, it

would not have altered the outcome for [Brown]. The best

course would still have been to negotiate a plea deal, as

opposed to going to trial, and the District Attorney would

not have changed his position based on the contradictory

testimony of a single, interested witness.

PCRA Court Opinion, 1/22/21, at 47-48.

Our review of the record supports the PCRA court’s conclusions.

Initially, we note that Dustin’s availability was not established unequivocally.

See id. at 21 (factual finding by the PCRA court that Dustin “did not contact

anyone involved in the case . . . because he was under the impression that he

‘had to be subpoenaed’”). Nevertheless, plea counsel’s decision to pursue a

plea deal was a reasonable strategy, given that counsel was able to obtain the

withdrawal of thirteen additional charges, including four first-degree felonies.

Brown’s claim that even when pursuing a plea, counsel should have

interviewed Dustin because “favorable defense evidence can assist in

obtaining a favorable plea or in strengthening the defense negotiation

position,” amounts to no more than speculation. Brown’s Brief at 32. Finally,

considering the totality of the Commonwealth’s evidence against Brown, we

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concur with the PCRA court’s determination that Brown could not establish

prejudice.

In his third issue, Brown asserts that plea counsel was ineffective for

advising him to enter a guilty plea to arson when the factual basis provided

for this plea was insufficient. According to Brown, the factual basis for this

charge was insufficient because it “did not establish that anyone was

endangered as a result of the fire.” Brown’s Brief at 20.

With regard to the procedure followed regarding the entry of a guilty

plea, this Court has stated:

Pennsylvania has constructed its guilty plea procedures

in a way designed to guarantee assurance that guilty pleas

are voluntarily and understandingly tendered. The entry of

a guilty plea is a protracted and comprehensive proceeding

wherein the court is obliged to make a specific

determination after extensive colloquy on the record that a

plea is voluntarily and understandingly entered.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super.

1993)).

Rule 590(A)(1) of the Pennsylvania Rules of Criminal Procedure requires

that a guilty plea be taken in open court. As noted in the Comment to Rule

590, at a minimum the trial court should ask questions to elicit the following

information:

(1) Does the defendant understand the nature of the

charges to which he or she is pleading guilty or nolo

contendere?

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(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the

right to trial by jury?

(4) Does the defendant understand that he or she is

presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of

sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by

the terms of any plea agreement tendered unless the

judge accepts such agreement?

(7) Does the defendant understand that the

Commonwealth has a right to have a jury decide the

degree of guilt if the defendant pleads guilty to murder

generally?

Pa.R.Crim.P. 590, Comment.

As noted above, this Court evaluates the adequacy of the plea colloquy

and the voluntariness of the resulting plea by looking at the totality of the

circumstances. Yeomans, 24 A.3d at 1047 (citation omitted). “Thus, even

though there is an omission or defect in the guilty plea colloquy, a plea of

guilty will not be deemed invalid if the circumstances surrounding the plea

disclose that the defendant had a full understanding of the nature and

consequences of his plea and that he knowingly and voluntarily decided to

enter the plea.” Id. Under Pennsylvania law, a reviewing court is free to

consider a wide array of relevant evidence in addition to the transcript of the

actual plea colloquy, under the totality-of-the-circumstances standard, to

determine the validity of a claim and plea agreement, including, but not

limited to transcripts from other proceedings, off-the-record communications

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with counsel, and written plea agreements. Commonwealth v. Allen, 732

A.2d 582, 589 (Pa. 1999).

The PCRA court found no merit to this claim:

Simple review of the record and applicable statute

reveals the absurdity of this argument.

***

The initial victims of [Brown’s] arson were Troopers

Harris and Howell, who arrived on scene not knowing

whether Ms. Labus or her children were in the trailer. They

then had to endure an armed standoff with [Brown] that

required them to balance their own safety, their desire to

end the standoff without harming [Brown], and the need to

make sure that anyone inside of the trailer was safe, all

while the remaining time for which conditions in the trailer

would remain survivable shrank toward zero (and all while

standing just outside a burning structure). It was only due

to the fortunate arrival of [Dustin] that the troopers were

able to discern that no one else was in the trailer, thus

avoiding the need to search it.

The next victims of [Brown’s] arson were the Wises.

Having already taken shelter in their basement due to the

gunfire, they were then forced to evacuate outside because

of the danger of the fire at [Brown’s] trailer spreading to

their house, given the close proximity of the structures.

Finally, while the general risk inherent for firefighters

responding to fight fires is likely not sufficient for a

conviction under [the arson statute], [Brown’s] argument

that no firefighters were endangered because none of them

had to enter the trailer to extinguish the fire is both glib and

self-serving. Given the speed at which the fire spread and

the delay in the fire department’s response caused by

[Brown’s] armed standoff with the troopers, the trailer was

fully involved even before the fire department was called.

Upon arrival the firefighters were forced to take a defensive

posture, protecting neighboring exposures such as the

Wises’ house to prevent the fire from spreading.

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PCRA Court Opinion, 1/22/21, at 37-38.

Our review of the record supports the PCRA court’s conclusions. As

noted above, the Commonwealth relied upon the affidavit of probable cause

as providing the factual basis for the plea. In making his argument, Brown

focuses on his admission provided in the affidavit that he “lit a fire in the

residence using a butane lighter and set a pair of sweatpants on fire near the

bedroom.” See Brown’s Brief at 20. He then argues that this factual basis

did not establish that anyone was endangered because of the fire. Id.

Although the use of the affidavit of probable cause did not provide all

the details regarding the entire incident, the factual basis provided was

sufficient notice of the crime to which Brown was pleading. Brown’s argument

to the contrary ignores the totality of the circumstances surrounding his guilty

plea. Yeomans, supra. Indeed, he acknowledges that the “fire spread” and

the record establishes that the trailer was fully engulfed by the time the fire

department arrived. In his brief, Brown cites Commonwealth v. McCoy,

199 A.3d 411 (Pa. Super. 2018), to argue that he was the only person in the

“orbit of danger” because he “was the only person within the trailer who was

at risk of bodily injury or death.” Brown’s Brief at 20-21. Brown’s reliance

upon McCoy is misplaced, as that case did not involve circumstances similar

to this case or even the arson statute. Brown’s third issue fails.

In his fourth issue, Brown asserts that the PCRA court erred in finding

that his ineffective assistance claims did not merit relief by holding that he

was not prejudiced by any of his prior counsel’s errors. We have already

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rejected Brown’s claims involving plea counsel.5 Regarding appellate counsel,

Brown’s argument involves the effectiveness of counsel’s challenge to the

discretionary aspects of his sentence on direct appeal. As phrased, Brown’s

fifth and sixth issues are direct challenges to the trial court’s sentencing

discretion, which are not cognizable under the PCRA. See generally,

Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007). Because his

supporting argument on these two issues essentially assert that appellate

counsel was ineffective for failing to raise these specific sentencing claims on

appeal, we will consider these three issues together.

In arguing these issues, Brown failed to show actual prejudice as

required by our precedent. In Commonwealth v. Reaves, 923 A.2d 1119

(Pa. 2007), our Supreme Court addressed whether a PCRA petitioner, whose

counsel failed to file a motion to reconsider sentence suffered prejudice.

There, the Superior Court had summarily concluded that prejudice was

presumed because counsel’s inaction effectively waived Reaves’ right to

challenge this issue on appeal.

____________________________________________

5As part of this issue, Brown raises additional alleged shortcomings regarding

plea counsel’s representations to him during the plea colloquy. See Brown’s

Brief at 34-35. After review, we conclude these claims are either refuted by

Brown’s answers during the plea colloquy, Pollard, supra, or inconsequential

when considering the totality of the circumstances surrounding Brown’s plea.

Yeomans, supra. This is especially true, considering the PCRA court’s

conclusion that plea and appellate counsel provided credible testimony, but

Brown’s PCRA hearing testimony was unworthy of belief. See PCRA Court

Opinion, 1/22/21, at 23-25.

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Our Supreme Court disagreed. Instead, the High Court held that a PCRA

petitioner raising a claim of ineffectiveness regarding counsel’s failure to file

a motion for reconsideration must establish actual prejudice. See Reaves,

923 A.2d at 1130. Specifically, the Court held that a PCRA petitioner must

show that, if counsel had taken a certain action, it would have led to a more

favorable sentence:

The Commonwealth argues that the Superior Court’s

prejudice analysis misses the mark because the panel

improperly focused on the effect of counsel’s inaction upon

the [appeal], rather than looking to the outcome of the

underlying [proceeding] itself. The Commonwealth is

correct. Although contemporaneous objections operate to

preserve issues for appellate review, they serve an equally

important function in obviating appeals by affording the

trial court a timely opportunity to correct mistakes and/or

to reconsider decisions. Whether [counsel] can be deemed

ineffective, then, depends upon whether [a defendant] has

proven that a motion to reconsider sentence if filed . . .

would have led to a different and more favorable outcome

at [sentencing]. In this context, the only way the

proceeding would have been more favorable would be if

counsel’s objection secured a reduction in the sentence. The

Superior Court panel erred as a matter of law in failing to

appreciate the actual focus of the [actual] prejudice

standard.

Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our

Supreme Court further concluded that the PCRA petitioner did not establish

actual prejudice, since “[on] this record, there is no reason to believe that, if

only counsel had asked for a statement of reasons for the sentence at the

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[time of sentencing] that statement or explanation alone would have led the

court to reduce the sentence”). Id. at 1132.6

Here, the PCRA court, who was also the sentencing court, considered

the alternative discretionary issues appellate counsel failed to raise on appeal,

i.e., Brown’s fifth and sixth issues, and determined that none of them would

have led it impose a reduced sentence. See PCRA Court Opinion, 1/22/21, at

38-43. The court further opined that “because of the severity of the

aggravating factors present and the need for the protection of the public, [the

trial court] determined that a sentence consistent with the cap agreed to

between [Brown] and the Commonwealth was appropriate.” Id. at 41. Thus,

Brown cannot establish actual prejudice and his fourth, fifth and sixth issues

provide no basis for relief.

In his final issue, Brown asserts that the PCRA court erred in treating

the fact that he pled guilty to the wrong subsection of Section 2507 as a

clerical error and correcting the information sua sponte.

In rejecting this claim, the PCRA court found that the subsection of

manslaughter of a law enforcement officer, § 2507(c)(1)(ii), that was listed in

the information and to which Brown pled guilty, involved the doctrine of

____________________________________________

6 Although Reaves involved his counsel’s failure to file a motion for

reconsideration and Brown claims his counsel failed to raise certain arguments

in his discretionary challenge, both circumstances involve counsel’s failure to

preserve a sentencing claim. Therefore, under Reaves, Brown must establish

actual prejudice.

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transferred intent. The PCRA court later determined that this subsection of

the statute:

[did] not match with the facts alleged by the Commonwealth

and accepted as true by the [trial court] as part of [Brown’s]

guilty plea (nor with the testimony at the PCRA hearings).

Per those facts, [Brown] fired his two shots directly at

Troopers Harris and Howell, intending to kill them. This

brings the facts of this instant case firmly within the ambit

of § 2507(c)(1)(i), which addresses situations in which an

actor, under provocation sufficient to reduce the offense to

voluntary manslaughter, kills a law enforcement officer in

the performance of duty knowing that the victim is a law

enforcement officer.

PCRA Court Opinion, 1/22/21, at 31-32.

The PCRA court then noted that, had this issue been caught earlier, the

Commonwealth could have moved to amend the information pursuant to

Pa.R.Crim.P. 564, and, even had the case gone to trial and the finder of fact

found Brown guilty of subsection 2507(c)(1)(i), the fact that the criminal

information charged a different subsection of the crime would not have

rendered the conviction invalid. See id. (citing Commonwealth v. Jones,

912 A.2d 268 (Pa. 2006); see also Commonwealth v. Mentzer, 18 A.3d

1200, 1205 (holding a criminal information may be amended after verdict but

before sentencing when the specified crime in the original information involves

the same basic elements and evolved out of the same factual situation as the

crime specified in the amended information).

Here, the PCRA court recognized that “[t]he difficulty in the instant case

is that the incorrect statutory citation [was] carried through the entirety of the

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matter.” PCRA Court Opinion, 1/22/21, at 34. The PCRA court cited decisions

from our sister states to determine the way courts have corrected errors in

the record discovered after conviction and sentencing. See PCRA Court

Opinion, 1/22/21, at 35-36, and found a Kansas statute harmonious with

Pennsylvania case law that permits the courts of this Commonwealth to

exercise their “inherent power to correct errors in [their] records or orders so

they speak ‘the truth’ and thereby reflect what actually took place in [the]

judicial proceedings.” Id. at 36 (citing Commonwealth v. Borrin, 80 A.3d

1219, 1227 (Pa. 2013). The court thus concluded that the “correct approach”

was “to treat the citation to § 2507(c)(1)(ii) as a clerical error. The record

[should] thus be corrected to reflect that [Brown] was convicted, via guilty

plea, of violating § 2507(c)(1)(i).” PCRA Court Opinion, 1/22/21, at 37.

According to Brown:

The court erred in sua sponte changing the subsection of

the conviction. The mens rea of the charge involves specific

intent to kill a police officer and also requires serious

provocation either by the victim or another whom the

defendant intends to kill. In reviewing the charge and the

conviction, the [PCRA court] found that the charge for which

[Brown] was charged and entered a guilty plea should be

changed to another section without notice or colloquy. This

cannot be seen as a merely clerical correction. Changing

the alleged offense to indicate that an intent to kill was a

result of serious provocation by law enforcement changes

the factual basis for the plea in a significant manner,

particularly where [Brown] denied awareness of the

presence of the police.

Brown’s Brief at 12. Without citation to authority or even discussion, Brown

asserts that the variance between the facts and the crime charged renders his

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sentence illegal. Brown’s Brief at 14. We can address an illegal sentencing

claim sua sponte. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.

2013). As noted below, Brown’s sentence was not illegal.

In his brief, Brown also does not develop his bare assertion that he had

no notice of the correct subsection—that the Commonwealth identified the

victim as Trooper Harris; rather, he now claims there was insufficient

provocation by the trooper to sustain the Section 2507(c)(1)(i) charge. See

Brown’s Brief at 16-17.7 Because this claim is being raised for the first time

on appeal, however, it is waived. See generally, Pa.R.A.P. 302.8

Regarding Brown’s claim that the PCRA court cannot fix a clerical error,

we turn to our precedent on this issue. In Commonwealth v. Young, 695

A.2d 414 (Pa. Super. 1997), the defendant was charged with two counts of

indecent assault: Section Pa.C.S.A. 3126(a)(1) (lack of consent- Count 2)

and Section 3126(a)(4) (substantially impaired victim-Count 3). “The facts

elicited throughout the proceedings below were consistent with a prosecution

for indecent assault as defined by Count 2 of the indictment, and [the

defendant] knowingly and voluntarily admitted to acts which violated Count 2

of the indictment.” Young, 695 A.2d at 419. However, “the [trial] court, the

prosecution and defense counsel committed, in essence, a clerical error by

____________________________________________

7Brown further misidentifies the crime to which he pled guilty as involuntary

manslaughter of a law enforcement officer. See 18 Pa. C.S.A. § 2507(d).

8We further note that “serious provocation” is required for both subsections

of 2507(c).

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permitting [the defendant] to plead guilty to the wrong sub-section of the

indecent assault statute.” Id. The defendant ultimately filed a PCRA petition

resulting in the PCRA court’s allowing him to withdraw his guilty plea.

The Commonwealth appealed, and this Court reversed the award of

post-conviction relief. We explained as follows:

We do not believe that such an error is tantamount to

manifest injustice. [The defendant] was charged in Count 2

with violating [Section] 3126(a)(1), and he voluntarily

admitted to facts which constituted that charge. The fact

that judgment of sentence indicates that [the defendant]

pleaded guilty and was sentenced on Count 3, [Section]

3126(a)(4), does not affect the voluntariness of [the

defendant’s] plea where there was no confusion as to his

commission of Count 2. [The defendant] intended to plead

guilty to indecent assault as defined by [Section]

3126(a)(1), and we will not permit him to withdraw his plea

simply because the trial court, his counsel and the

prosecution failed to insure that [the defendant] pleaded

guilty to the correct count of the indictment.

Presently, the PCRA court should have corrected the

clerical error of counsel and the trial court which permitted

the judgment of sentence to indicate that [the defendant]

had been sentenced on indecent assault as defined by Count

3, rather than by Count 2. The power to modify a judgment

of sentence to amend records, to correct mistakes of court

officers or counsel’s inadvertencies is inherent in our court

system, even after the thirty-day time limit set forth in 42

Pa.C.S.A. § 5505, has expired. Thus, we will herein correct

the clerical error which appears on the face of the judgment

of sentence by setting forth the correct sub-section of the

indecent assault statute, i.e., substituting Count 2 of the

indictment for Count 3.

Young, 695 A.2d at 419-20 (footnotes and citations omitted).

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Here, s in Young, we conclude that the erroneous reference to Section

2507(c)(ii) as opposed to Section 2507(c)(i) does not invalidate Brown’s guilty

plea. Brown pled guilty to attempted voluntary manslaughter of Trooper

Harris. Moreover, the factual basis for the plea, which Brown acknowledged,

encompassed the correct subsection. As the PCRA court noted:

What is clear, however, is that everyone involved in the

case, from the troopers and the District Attorney’s Office to

[plea counsel], [the trial court], and [Brown] himself,

understood the allegation to be that [Brown] had directly

fired at Troopers Harris and Howell, and that the basis of

the charge was that in doing so, [Brown] had intended to

kill Trooper Harris.

Id. at 32 (footnote omitted). We find ample support for this conclusion in our

review of the certified record. See Jones, 912 A.2d 268, 289 (Pa. 2006)

(holding that, when properly read in a common sense manner, first-degree

murder indictment gave defendant adequate notice of the charges against

him, although the criminal information did not specify the specific intent

elements as to the unintended victim of shooting). Thus, we concur with the

PCRA court’s directive to correct the record. See supra.

In sum, Brown has failed to meet his burden regarding his

ineffectiveness claims of both plea and appellate counsel. In addition, the

PCRA court did not err in directing amendment of the record. Brown is not

entitled to any post-conviction relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/16/2022

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