J-S79018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BASIL BROOKS,
Appellant No. 3268 EDA 2013
Appeal from the PCRA Order of November 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0606211-2006
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 25, 2015
Appellant, Basil Brooks, appeals from an order entered on November
22, 2013 in the Criminal Division of the Court of Common Pleas of
Philadelphia County that dismissed, without a hearing, his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court summarized the background facts in this matter as
follows:
On October 10, 2007, [a jury found Appellant guilty of first-
degree murder,] [v]iolation of the [u]niform [f]irearms [a]ct
(VUFA), and [p]ossession of an [i]nstrument of [c]rime (PIC).
On November 29, 2007, the [trial c]ourt imposed a mandatory
sentence of life imprisonment for murder, a consecutive
sentence of one to seven (1-7) years’ incarceration for VUFA,
and a sentence of one to two (1-2) years’ incarceration for PIC
to run concurrent to the sentence imposed for his VUFA
conviction.
*Retired Senior Judge assigned to the Superior Court.
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On December 5, 2007, Appellant filed post-sentence motions,
which were denied by the [trial c]ourt on April 8, 2008.
Appellant then filed a direct appeal, claiming the [trial c]ourt
erred in admitting “prior bad acts” testimony into evidence,
challenging the weight and sufficiency of his [convictions], and
that the [trial c]ourt erred by giving the jury a hypothetical
example to illustrate the recklessness required for third[-]degree
murder. Appellant’s judgment of sentence was affirmed on May
25, 2010. [Thereafter,] Appellant’s [p]etition for [a]llowance of
appeal was denied on January 20, 2011.
On December 9, 2011, Appellant filed a pro se [PCRA p]etition.
Counsel was appointed and filed an [a]mended [p]etition on
November 1, 2012. On May 21, 2013, the Commonwealth filed
a [m]otion to [d]ismiss. On June 4, 2013, Appellant filed an
answer to the Commonwealth’s motion and on June 7, 2013, a
[s]upplemental [a]mended [p]etition was filed. On July 18,
2013, the Commonwealth filed a [s]upplemental [m]otion to
[d]ismiss in response.
On October 18, 2013, th[e PCRA c]ourt filed a notice of intent to
dismiss pursuant to Pa. R. Crim. P. 907. Th[e PCRA c]ourt
formally dismissed Appellant’s PCRA petition on November 22,
2013.
Appellant filed his [n]otice of [a]ppeal on November 25, 2013.
That same day, th[e PCRA c]ourt ordered Appellant to file a self-
contained and intelligible statement of matters complained of on
appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of
Appellate Procedure. Appellant filed a timely 1925(b)
[s]tatement on November 27, 2013.
PCRA Court Opinion, 6/23/14, at 1-2.
Appellant’s brief1 raises the following questions for our review:
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1
Following the timely filing of his brief, Appellant filed an application for this
Court to accept his principal brief although it was prepared using 12-point
font as opposed to 14-point font required pursuant to Pa.R.A.P. 124(a)(4).
We grant Appellant’s request.
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Did the PCRA court err in denying without a hearing the following
claims, all of which were answered in the negative below:
Was counsel ineffective for failing to impeach the two
primary Commonwealth witnesses with evidence related to
their own 19 criminal cases?
Was counsel ineffective for failing to request a jury
instruction pursuant to Commonwealth v. Kloiber in light
of the evidence that eyewitness Angelo Slaughter failed to
identify Appellant on a prior occasion?
Was counsel ineffective for failing to object to the trial
court’s instruction that required a grave and serious doubt
before a juror could vote to acquit?
Was counsel ineffective for failing to object when the trial
court excluded the public from the courtroom during the
trial for a trivial reason that did not outweigh Appellant’s
rights to a public trial?
Was counsel ineffective for failing to object to the trial
court’s unprecedented procedure of conducting portions of
voir dire, including the exercise of both for-cause and
peremptory challenges, in the absence of Appellant?
Did the PCRA court err in denying the PCRA petition without ever
addressing Appellant’s motions for discovery as set forth in
various pleadings seeking information regarding:
Commonwealth efforts to relocate Angelo Slaughter and to
provide assistance of any kind to him;
Benefits conferred by the Commonwealth to either Angelo
Slaughter or Leslie Spaulding in connection with their
various criminal cases;
Evidence in the possession of either the Commonwealth or
Clerk of Courts that would help re-create a record to
determine on which jurors the Commonwealth exercised
peremptory challenges; and
The notes of testimony on several cases of the
Commonwealth witness?
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Appellant’s Brief at 3-4.
Appellant challenges an order that summarily dismissed his PCRA
petition alleging claims that trial counsel was ineffective. The standard and
scope of review, as well as the general principles of law, that govern such
claims are as follows:
Under our standard of review for an appeal from the denial of
PCRA relief, we must determine whether the ruling of the PCRA
court is supported by the record and is free of legal error. The
PCRA court's credibility determinations are binding on [appellate
courts] when they are supported by the record. However, this
Court applies a de novo standard of review to the PCRA court's
legal conclusions.
To be eligible for PCRA relief, a petitioner must plead and prove
by a preponderance of the evidence that his or her conviction or
sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances
include . . . ineffective assistance of counsel which “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). []
Under Pennsylvania Rule of Criminal Procedure 90[7], the PCRA
court has the discretion to dismiss a petition without a hearing
when the court is satisfied “that there are no genuine issues
concerning any material fact, the defendant is not entitled to
post-conviction collateral relief, and no legitimate purpose would
be served by any further proceedings.” Pa.R.Crim.P. 90[7(1)].
To obtain reversal of a PCRA court's decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements[:]
(1) the underlying legal claim has arguable merit; (2) counsel
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had no reasonable basis for his or her action or inaction; and (3)
the petitioner suffered prejudice because of counsel's
ineffectiveness. [A claim possesses arguable merit if counsel’s
action or inaction is inconsistent with a constitutional guarantee,
statute, rule of procedure, or established precedent.] With
regard to the second, reasonable basis prong, we do not
question whether there were other more logical courses of action
which counsel could have pursued; rather, we must examine
whether counsel's decisions had any reasonable basis. We will
conclude that counsel's chosen strategy lacked a reasonable
basis only if Appellant proves that an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued. To establish the third, prejudice prong,
the petitioner must show that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel's ineffectiveness[.]
Commonwealth v. Paddy, 15 A.3d 431, 441-443 (Pa. 2011) (internal
quotations and case citations omitted). If a claim fails under any required
element of the test for ineffectiveness, the court may dismiss the claim on
that basis. Commonwealth v. Reid, 99 A.3d 427, 436 (Pa. 2014).
In his first issue, Appellant asserts that the PCRA court erred in
dismissing, without a hearing, his claim that trial counsel rendered
ineffective assistance in failing to impeach the Commonwealth’s two primary
witnesses with relevant and admissible aspects of their respective criminal
histories. At trial, the Commonwealth’s case against Appellant centered on
the testimony of Angelo Slaughter and Leslie Spaulding. The
Commonwealth offered Slaughter as an eyewitness to the murder and
Spaulding provided background information that established Appellant’s
motive for the crime. Appellant alleges that trial counsel was unjustified in
failing to inquire into the details of the witnesses’ criminal histories, that
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counsel lacked a reasonable basis for this omission, and that counsel’s
decision “prevented Appellant from fully challenging [the witnesses’]
self[-]interest and meaningfully establishing their expectation of leniency[.]”
Appellant’s Brief at 25.
We address this claim by reviewing the witnesses’ respective criminal
histories that Appellant says should have been presented to the jury. We
then review and apply the law governing the admissibility of this
information. Our analysis focuses first on Slaughter and then turns to
Spaulding. Since we conclude that trial counsel presented the admissible
aspects of the witnesses’ criminal histories to the jury, we conclude that the
PCRA court did not err in dismissing Appellant’s petition without a hearing.
Appellant alleges that trial counsel should have presented, as
impeachment material, detailed aspects of Slaughter’s criminal history.
Specifically, Appellant lists the following incidents as relevant and admissible
grounds for impeachment: 1) a February 8, 2005 carjacking arrest that was
pending when Slaughter gave police statements but that was nolle prossed
five weeks after he identified Appellant; 2) a March 28, 2006 guilty plea to
aggravated assault for which Slaughter was serving probation or parole at
the time he testified in the present case2; 3) an April 9, 2007 arrest for
____________________________________________
2
Appellant suggests that counsel should have examined Slaughter to
establish that he may have sought to curry favor with the Commonwealth
because of potential violations of the terms of his supervisory sentence,
(Footnote Continued Next Page)
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eluding a police officer and driving under the influence and a May 10, 2007
felony theft charge (both from Luzerne County) that were pending at the
time he testified in this case and for which he received probation following
the conclusion of Appellant’s trial; 4) the Commonwealth’s decision not to
proceed with charges arising from Slaughter’s false initial statements to
police in this matter; and, 5) various juvenile offenses that were either
withdrawn, dismissed, or proceeded to unspecified delinquency adjudications
between 2001 and 2004. See id. at 13-19.
Appellant’s claim is that trial counsel should have combed through the
details of each of the foregoing incidents in order to demonstrate for the jury
that Slaughter received favorable treatment or consideration from the
Commonwealth. Appellant argues that it was incumbent upon trial counsel
to place before the factfinder the nature and seriousness of Slaughter’s
charges, the terms of his sentences, and possible benefits garnered from the
Commonwealth to allow the jurors in Appellant’s case to assess thoroughly
Slaughter’s motives for skewing his testimony in favor of the
Commonwealth.
After careful review, we conclude that the admissible portions of
Slaughter’s criminal record were introduced at trial and that trial counsel
was not ineffective as Appellant alleges. The admission of prior bad acts is
_______________________
(Footnote Continued)
including subsequent arrests, his possible status as an absconder, and the
payment status of his fines and costs. See Appellant’s Brief at 16-17.
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within the discretion of the trial court and will only be reversed upon a
showing of abuse of discretion. Commonwealth v. Patterson, 91 A.3d 55,
68 (Pa. 2014). It is well-settled in this Commonwealth that evidence of a
distinct crime, except under special circumstances, is inadmissible. Id.
“[Rule 608(b) of the Pennsylvania Rules of Evidence] precludes the
admission of specific instances of misconduct to attack a witness' character
for truthfulness while Pa.R.E. 609(a) requires an actual conviction of a crime
involving dishonesty or false statement in order for a witness's credibility to
be attacked with evidence of the crime.” Commonwealth v. Chmiel, 889
A.2d 501, 534 (Pa. 2005). “[Where] there [is] no conviction, admission of
this evidence [is] properly barred to challenge the credibility of the witness.”
Id. “Under [Pa.R.E. 609(d)], in a criminal case, [evidence of a juvenile
delinquency adjudication] may be used to impeach the credibility of a
witness if [a] conviction [for] the offense would be admissible to attack the
credibility of an adult.” Commonwealth v. Hoover, 2014 WL 7392244, *8
(Pa. 2014).
On direct examination by the Commonwealth, Slaughter admitted that
he was currently on probation and/or parole for a prior conviction (for his
March 28, 2006 guilty plea to aggravated assault) and that he had two open
cases pending in Pennsylvania (his Luzerne County charges). N.T., 10/4/07,
at 97-98. During cross-examination, Slaughter testified that, at the time he
identified Appellant as the shooter, he feared becoming involved in this case
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and he was worried about his other open cases and the fact he was on
probation and/or parole. Id. at 170-172. Lastly, in her final instructions,
the trial judge reminded the jurors about Slaughter’s prior conviction and
open cases and directed them to consider how such evidence might affect
the veracity of Slaughter’s testimony. N.T., 10/9/07, at 158. Since the jury
was plainly made aware of Slaughter’s supervised status and open cases, it
possessed ample information to assess Slaughter’s credibility as a witness.
Moreover, because trial counsel cannot be deemed ineffective for failing to
pursue meritless claims, the remaining aspects of Slaughter’s criminal
history furnish no grounds for collateral relief.
With regard to Spaulding, Appellant alleges that trial counsel was
ineffective in failing to present the jury with information concerning: 1)
Spaulding’s December 8, 2005 felony drug and firearms arrest; 2) a
reduction in Spaulding’s bail two weeks before he testified at Appellant’s
trial; 3) a series of arrests from 2003 through 2006 for which the charges
have been withdrawn; and 4) two juvenile delinquency prosecutions, one
which involved an adjudication for the theft or unauthorized use of an
automobile and another where the Commonwealth dismissed the charges.
See Appellant’s Brief at 22-23.
Our review of the record confirms that trial counsel used the
admissible portions of Spaulding’s criminal history to make the jury aware of
his interest in currying favor with the Commonwealth. Trial counsel
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questioned Spaulding about his open firearms charges and his efforts to
obtain bail on those offenses. N.T., 10/9/07, at 51-52. In fact, the jury
heard that Spaulding received use immunity in exchange for his testimony in
the present case. Id. at 47-48. In addition, as with Slaughter, the trial
judge reminded the jurors about Spaulding’s open cases and directed them
to consider the possibility of how such evidence might affect the truthfulness
of his testimony. Id. at 158. Since trial counsel made the jury aware of
Spaulding’s potential bias, we find that Appellant’s allegation merits no
relief.3
Appellant’s second issue contends that trial counsel was ineffective for
failing to request an instruction under Commonwealth v. Kloiber, 106
A.2d 820 (Pa. 1954). The thrust of Appellant’s claim is that Slaughter (who
knew Appellant from the neighborhood) initially failed to identify Appellant
as the assailant in this case. In support of his claim, Appellant stresses that
“Kloiber requires a cautionary instruction whenever a trial identification is
preceded by a prior failure to identify[.]” Appellant’s Brief at 36.
A Kloiber charge is appropriate where there are special identification
concerns: a witness did not have the opportunity to clearly view the
defendant, equivocated in his identification of a defendant, or had difficulty
____________________________________________
3
Given Appellant’s failure to demonstrate prejudice on the present record,
we conclude that he is not entitled to relief based upon counsel’s alleged
failure to confront Spaulding with a single juvenile adjudication involving
crimen falsi.
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making an identification in the past. Cf. Commonwealth v. Rollins, 738
A.2d 435, 448 n.14 (Pa. 1999). However, “[w]hen the witness already
knows the defendant, this prior familiarity creates an independent basis for
the witness's in-court identification of the defendant and weakens
ineffectiveness claims based on counsel’s failure to seek a Kloiber
instruction.” Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (citations
omitted). Since the need for a Kloiber charge focuses on the ability of a
witness to identify the defendant, our decisional law is clear that prior
inconsistent statements based upon fear of endangerment do not equate to
a witness’ prior failure to identify a defendant. Reid, 99 A.3d at 449;
Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa. Super. 1991) (Kloiber
instruction inappropriate since fear of identifying defendant cannot be
equated to failure to make identification). The facts here show that
Slaughter was unwilling, not unable, to identify Appellant since he feared
designation as a “snitch.” Hence, there was no call for a Kloiber instruction
and counsel was not ineffective in deciding to forego such a charge.
Appellant’s third claim alleges that trial counsel was ineffective in
failing to object to a portion of the instructions to the jury in which the court
supposedly employed a misleading analogy to illustrate the Commonwealth’s
burden of proof. Although Appellant admits that the court properly defined
the Commonwealth’s burden in a separate section of the charge, he claims
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that trial counsel lacked a reasonable basis for his failure to object, which
prejudiced him.
Appellant is not entitled to relief on this claim. As we have said in
prior cases involving challenges to the instructions given to jurors:
The nature of a court's instructions to the jury is within the
discretion of the court, so long as the court accurately instructs
the jury on the appropriate legal principles involved. This
Court's main concern is that the charge clearly, adequately, and
accurately presents the law to the jury for its consideration. The
jury charge must be reviewed not in isolated portions but as a
whole to ascertain whether it fairly conveys the required legal
principles at issue.
Commonwealth v. Willis, 990 A.2d 773, 776 (Pa. Super. 2010) (internal
quotations and citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).
After a thorough review of the trial court's entire jury charge, we are
satisfied that the jury received a comprehensive and accurate presentation
of the law as it applied to this case. As even Appellant concedes, the trial
court accurately defined the Commonwealth’s burden in its charge to the
jurors. Moreover, our review of the challenged portion of the court’s
instruction convinces us that the court offered its example as a means to
focus the jurors on the solemn nature of their deliberations and the concept
that reasonable doubt is something that causes one to hesitate or refrain
from acting in a matter of important concern. See Commonwealth v.
Thomas, 602 A.2d 820, 822-823 (Pa. 1992) (approving jury charge defining
reasonable doubt as a doubt of such substance that it would prevent further
action in a matter of importance in a juror’s own affairs). Thus, we find no
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misstatement of the law and trial counsel was not ineffective in deciding not
to object to the charge.
Appellant’s fourth and fifth claims allege ineffective assistance in trial
counsel’s failure to object to alleged violations of Appellant’s rights to a
public trial and to attend all aspects of the proceedings before the trial court.
Because we dispose of these contentions on related grounds, we shall
address them in a single discussion.
In his fourth claim, Appellant alleges that the PCRA court erred in
summarily dismissing his claim that trial counsel4 was ineffective in failing to
object when the trial court ordered several members of the public to leave
the courtroom during voir dire in order to accommodate prospective jurors.
Appellant argues that the trial court impermissibly closed the courtroom for
the initial portions of voir dire without offering compelling reasons for her
decision and without considering less intrusive measures such as allowing
members of the gallery to stand inside the courtroom or splitting the venire
____________________________________________
4
In his brief, Appellant also contends that direct appeal counsel was
ineffective in failing to raise his public trial claim. Appellant’s Brief at 51.
This claim is waived as Appellant never included it within his Pa.R.A.P. 1925
concise statement. See Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in
concise statement are waived). Even if this claim were not waived,
Appellant would not be entitled to relief. Here, trial counsel failed to raise a
public trial objection before the court. Since appellate counsel cannot be
deemed ineffective for failing to raise a claim that was not preserved before
the trial court, Appellant’s purported challenge to the performance of direct
appeal counsel immediately fails. See Commonwealth v. Fletcher, 986
A.2d 759, 783 (Pa. 2009) (appellate counsel cannot be faulted for failing to
raise claim that was not preserved a trial level).
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panel into smaller groups. Appellant also argues that trial counsel lacked a
strategic basis for failing to object. Finally, Appellant contends that
prejudice should be presumed since his public trial claim represents a
structural defect in the proceedings before the trial court.
Appellant’s fifth claim asserts that the PCRA court summarily dismissed
his claim that trial counsel was ineffective in failing to object when the trial
court conducted certain proceedings during jury selection in a conference
room outside of Appellant’s presence. Here, Appellant declares that the trial
court’s actions violated his constitutional right to be present at all critical
stages of his trial. Again, Appellant claims that trial counsel had no
reasonable basis to forgo an objection and that prejudice should be
presumed since this issue involved a structural defect in his trial. In the
alternative, Appellant asserts that he has demonstrated actual prejudice
since he has alleged and intends to prove that his absence precluded him
from suggesting questions to his attorney.
As Pennsylvania law recognizes the rights espoused in Appellant’s
brief, we shall assume, without deciding, that Appellant’s claims possess
arguable merit and that trial counsel lacked strategic grounds in failing to
object to the trial court’s directives. See Commonwealth v. Penn, 562
A.2d 833 (Pa. Super. 1989) (criminal defendant has a right to public trial
which may be overcome where proper balancing of interests has been
conducted, less restrictive alternatives have been explored and rejected, and
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where trial judge places reasons for closure on the record); Pa.R.Crim.P.
602(A) (providing that defendant “shall be present at every stage of the trial
including the impaneling of the jury”). Notwithstanding these assumptions,
Appellant must demonstrate how trial counsel’s performance prejudiced
efforts of the defense in order to succeed on his present claims. Because we
reject Appellant’s contention that prejudice should be presumed, and since
we find that actual prejudice has not been shown for purposes of Appellant’s
right of presence claim, we conclude that Appellant has not met the third
prong of the test for ineffective assistance. Accordingly, Appellant is not
entitled to relief.
Appellant maintains on appeal that his public trial and right of
presence claims involve structural defects that call for a presumption of
prejudice. See Appellant’s Brief at 50 and 56. He is correct that prior cases
such as Commonwealth v. Knight, 364 A.2d 902 (Pa. 1976) have held, on
direct appeal, that where an appellant was denied his right to a public trial,
a new trial must be granted and that no showing of prejudice is required.5
However, these cases neither address nor hold that a petitioner on collateral
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5
Like Knight, the decision of this Court in the direct appeal of
Commonwealth v. Johnson, 455 A.2d 654, 658 (Pa. Super. 1982)
declared that a new trial must be granted, without a showing of prejudice, if
the defendant is denied his right to a public trial.
The parties have not cited, and we have not located, an analogous
Pennsylvania holding in the context of a right of presence claim.
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review is relieved of the burden to prove prejudice within the context of a
claim asserting counsel’s ineffectiveness. To the contrary, prior cases on
collateral review that have considered the exclusion of the public from voir
dire proceedings have held that the petitioner must demonstrate actual
prejudice. See Commonwealth v. Johnson, 500 A.2d 173, 177-178 (Pa.
Super. 1985) (petitioner alleging ineffective assistance arising from counsel’s
failure to seek public voir dire must demonstrate actual prejudice; new trial
unwarranted where petitioner did not “suggest a likelihood that a jury
selected in a different manner would have reached a different result”);
Commonwealth v. Brandt, 509 A.2d 872, (Pa. Super. 1986) (counsel’s
failure to object to voir dire conducted in chambers rather than in open court
did not constitute ineffective assistance of counsel where petitioner failed to
show, among other things, that jury selected in another manner would have
reached a different verdict), appeal denied, 521 A.2d 930 (Pa. 1987).
Indeed, to extract our holdings from the direct review context and
apply them within the PCRA context would effectively deem counsel’s actions
in such situations per se ineffective. However, as the Supreme Court of
Pennsylvania explained in Commonwealth v. Reaves, 923 A.2d 1119,
1128 (Pa. 2007), the situations within the PCRA context in which prejudice is
presumed are rare, and are limited to when counsel’s actions wholly deny a
defendant the right to appellate review, such as the failure to timely file a
requested appeal or Rule 1925 statement. In Reaves, the High Court held
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that counsel’s failure to move for reconsideration of sentence following a
violation of probation proceedings did not waive any and all appellate issues
– only those claims subject to issue preservation requirements which were
not otherwise properly preserved. Id. at 1128-1129. The Supreme Court
in Reaves expressly distinguished counsel’s actions that result in the total
deprivation of appellate rights, from counsel’s actions that allow an appeal,
albeit on a more limited scope. Id. at 1128. In the latter situations, the
Supreme Court explained, prejudice is not presumed. Id. (“It is thus
apparent that counsel's lapse did not deprive appellee of his right to
appellate review; at most, his attorney's conduct at the trial level ‘narrowed
the ambit’ of the appeal new counsel pursued. As such, it is clear
that…appellee must satisfy the…actual prejudice standard.”)
In this matter, as in Reaves, trial counsel’s failures to object to
closure of the courtroom and Appellant’s exclusion during a brief period of
jury selection at most limited the scope of Appellant’s challenges on direct
appeal, but did not wholly deny appellate review. Consequently, the fact
that Appellant here has raised public trial and right of presence claims
cannot obviate the need to demonstrate prejudice in the PCRA context. See
Commonwealth v. Williams, 9 A.3d 613, 619 (Pa. 2010) (holding that
while the defendant’s unqualified right to be present at every stage of the
trial was violated without an objection from trial counsel, counsel’s failure to
object did not result in a total failure to subject the case to the adversarial
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process, and therefore was not an instance where a presumption of
prejudice applied). Because Appellant has not pled and proved that the
outcome of his trial would have been different if his trial counsel had lodged
proper objections, Appellant’s claims of ineffective assistance of counsel
must fail.
We are not willing to equate the prejudice presumed on direct appeal
with the prejudice necessary for an ineffective assistance of counsel claim.
They are, in fact, quite different. Indeed, in Williams, the Supreme Court
explained that:
Although it purported to apply the [three-prong test for
ineffective assistance], the Superior Court conducted a harmless
error analysis, which was improper given the procedural posture
of this case. See Commonwealth v. Williams, 959 A.2d 1272,
1283 (Pa. Super. 2008). The harmless error standard typically
applies to claims of trial court error raised on direct appeal, and
the burden of proof is on the Commonwealth, which must
demonstrate beyond a reasonable doubt that the error did not
affect the verdict. See Commonwealth v. Howard, 645 A.2d
1300, 1307 (Pa. 1994). In contrast, an ineffectiveness claim
shifts the focus to counsel's stewardship, and under [the
conventional test for ineffective assistance], the defendant has
the burden of showing that counsel's performance “had an actual
adverse effect on the outcome of the proceedings.” Howard,
645 A.2d at 1307. Thus, it is more difficult to obtain relief on
collateral review because [ineffectiveness claims] place[] a
heavier burden on the defendant. See Commonwealth v.
Reaves, 923 A.2d 1119, 1130 (Pa. 2007) (discussing the
evidentiary standards applicable to preserved issues of trial court
error and derivative claims of ineffective assistance of counsel).
Williams, 9 A.3d at 619, n.7 (parallel citations omitted).
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Simply because on direct appeal Appellant would not have been
required to establish prejudice, does not mean that he is entitled to the
same presumption of prejudice on collateral review. Because counsel’s
alleged ineffectiveness did not result in a total abandonment of counsel or a
failure of the adversarial proceedings, we do not believe that a presumption
of prejudice applies. Consequently, Appellant was obligated to establish that
his counsel’s purported failures resulted in prejudice to his proceedings.
Having failed to establish prejudice, we hold that the trial court properly
denied Appellant’s PCRA petition as a matter of law.
We also reject Appellant’s alternate contention that he demonstrated
actual prejudice for purposes of his right of presence claim. Here, Appellant
maintains that his exclusion from voir dire precluded him from suggesting
questions and/or objections to counsel. See Appellant’s Brief at 56.
However, in preparing his petition, Appellant had every opportunity to
compare his knowledge with trial counsel’s notes and recollection from the
proceedings and come forward with fact-based claims that demonstrated
how his brief exclusion hampered the defense. Despite this chance,
Appellant fails to cite a single question or suggestion he would have made to
trial counsel, much less explain how his insights offered a reasonable
probability of a different trial result. Appellant’s bald allegations of prejudice
entitle him to no relief.
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Appellant’s final claim asserts that the PCRA court erred in dismissing
his petition without addressing his discovery motions. Through these
motions, Appellant sought documents and information regarding the
Commonwealth’s use of preemptory challenges and undisclosed benefits to
Commonwealth witnesses. After careful review, we discern no error or
abuse of discretion on the part of the PCRA court since Appellant failed to
show exceptional circumstances that support his discovery requests.
Pa.R.Crim.P. 902(E)(1) (“no discovery shall be permitted at any stage of the
proceedings, except upon leave of court after a showing of exceptional
circumstances”); Reid, 99 A.3d at 445 (allegation that petitioner only
“believes and alleges” that Commonwealth witness received considerations is
insufficient to permit discovery).
Order affirmed. Appellant’s Application for Court to Accept Appellant’s
Principal Brief in 12-point font granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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Com. v. Brooks, B.
Combined Opinion