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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW BROWN
Appellant No. 119 EDA 2014
Appeal from the PCRA Order December 11, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002218-2005
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 30, 2015
Andrew Brown appeals from the order of the Court of Common Pleas
of Delaware County dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”).1 Additionally, Brown’s counsel seeks
permission to withdraw from representation. Upon review, we grant
counsel’s petition to withdraw and affirm the order of the PCRA court.
This matter arises from a fatal shooting in the city of Chester on
September 15, 2004. On October 27, 2006, a jury convicted Brown of first-
degree murder.2 On December 5, 2006, the court sentenced Brown to life in
prison without parole. On December 10, 2009, this Court affirmed Brown’s
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2505(a).
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judgment of sentence. See Commonwealth v. Brown, No. 2347 EDA
2008 (Pa. Super. 2009) (unpublished memorandum). Brown did not file a
petition for allowance of appeal with our Supreme Court.
On January 28 2010, Brown filed a pro se PCRA petition. On May 10,
2010, Brown’s trial counsel filed an application to withdraw his appearance.
On October 27, 2010, the court permitted counsel to withdraw, and
appointed Scott D. Galloway, Esquire, as new counsel for Brown. Attorney
Galloway filed an amended petition on February 3, 2012, and, on December
11, 2013, the PCRA court dismissed the petition.
On January 9, 2014, Brown filed the instant appeal. Thereafter, on
September 8, 2014, Attorney Galloway filed a Turner/Finley3 no-merit
letter and a petition to withdraw. In response, on November 21, 2014,
Brown filed an application for relief to file a pro se brief in support of the
merits of his claims. We granted Brown’s request on February 6, 2015.
Thereafter, Brown requested an extension of time to file his pro se brief.
This Court granted a fifteen-day extension on March 2, 2015. As of March
17, 2015, Brown has yet to file his pro se brief. Accordingly, we will review
Attorney Galloway’s Turney/Finley letter brief for the issues Brown wishes
to raise on appeal.
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3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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However, before considering the issues Attorney Galloway asserts
Brown wishes to raise on appeal, we first must consider whether counsel has
complied with the requirements of Turner/Finley. We previously have
explained this procedure as follows:
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate’s brief.
However, where counsel submits a petition and no-merit letter
that do satisfy the technical demands of Turner/Finley, the
court - trial court or this Court - must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
Attorney Galloway’s letter brief indicates that he examined the record,
case law, and all relevant statutes; that he discussed the case with Brown;
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and that after examining whether any claims were available to Brown,
counsel explained why he believed Brown’s issues lacked merit. Attorney
Galloway mailed copies of his Turner/Finley letter brief and petition to
withdraw to Brown, and advised Brown of his right to proceed pro se or
through privately-retained counsel. Accordingly, we conclude that Attorney
Galloway has substantially complied with the mandates of Turner and
Finley, and we proceed with our review of the merits of Brown’s claims.
According to counsel, Brown wishes to raise the following issues for
our review:
1. Was Brown denied effective assistance of counsel in that his
Attorney had a conflict of interest as to representation?
2. Was trial counsel ineffective for failing to file a motion as to
the suppression of certain statements made by Brown?
3. Was trial counsel ineffective for failing to file a motion as to
the disclosure of statements and identity of confidential
informants?
4. Was trial counsel ineffective for failing to object to statements
made during the District Attorney’s closing argument?
5. Was trial counsel ineffective for moving for the sequestration
of Detective Todd Nuttall?
6. Was trial counsel ineffective for failing to request of the court
a jury instruction as to voluntary manslaughter?
Turner/Finley letter, 9/8/14 at 2-3.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. Further, we grant great deference to the
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factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations and quotations omitted). Brown’s issues on appeal implicate the
effectiveness of trial counsel.
Counsel is presumed effective and will only be deemed
ineffective if the petitioner demonstrates that counsel’s
performance was deficient and he was prejudiced by that
deficient performance. Prejudice is established if there is a
reasonable probability that, but for counsel's errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.
To properly plead ineffective assistance of counsel, a petitioner
must plead and prove: (1) that the underlying issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel’s act or failure to act. If a petitioner fails to plead or
meet any elements of the above-cited test, his claim must fail.
Id. at 1195.
In his first issue, Brown argues that trial counsel was ineffective
because he had a conflict of interest in representing Brown. Specifically,
Brown claims that counsel served as a Juvenile Master in a matter involving
Brown and, because of this, Brown was prejudiced. Brown relies on 42
Pa.C.S. § 25024 to support his claim that counsel was prohibited from
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4
The statute provides:
(a) General Rule. Except as otherwise prescribed by general
rule, an attorney at law who is an employee of a court
(Footnote Continued Next Page)
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appearing in the Delaware County Court of Common Pleas. Our standard of
review is well-settled.
Absent an abuse of discretion, we are constrained to accept the
trial court’s finding that there was no conflict of interest. A
prosecution is barred when an actual conflict of interest affecting
the prosecutor exists in the case; under such circumstances a
defendant need not prove actual prejudice in order to require
that the conflict be removed. Mere allegations of a conflict of
interest, however, are insufficient to require replacement of a
district attorney.
Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa. Super. 2000)
(internal quotations and citations omitted). Furthermore, an appellant
cannot prevail on a preserved conflict of interest claim absent a showing of
actual prejudice. Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa.
2012).
Initially, we note that Section 2502 only prohibited counsel from
appearing before the Delaware County Juvenile Court. See 42 Pa.C.S. §
2502; see also Pa.R.J.C.P. 185(b) (“Masters shall not engage in practice
before the juvenile court in the same judicial district where they preside over
juvenile matters.”). Additionally, Brown does not allege any specific act or
omission showing that trial counsel had a conflict of interest. In fact, when
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(Footnote Continued)
shall not appear as counsel in such court. An attorney at
law shall not appear in any court or in any matter in
violation of any general rule relating to the practice of law
or the conduct of courts, magisterial district judges and
officers serving process or enforcing orders of the court.
42 Pa.C.S. § 2502.
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asked whether Brown was aware that trial counsel had served as a juvenile
master in a matter involving him, Brown answered that he was aware and
that he wanted trial counsel as his attorney. N.T. Trial, 10/24/06, at 25-26.
Because section 2502 permitted counsel to appear in the Delaware County
Court of Common Pleas and Brown merely alleges a conflict of interest, we
find this claim meritless. Stafford, supra.
In his second issue, Brown claims that trial counsel was ineffective for
failing to file a motion to suppress two statements made by Brown to the
police. Brown asserts that the statements were involuntary and illegally
obtained.
The constitutional test for voluntariness concerns whether the
interrogation was so manipulative or coercive that it deprived the defendant
of his ability to make a free and unconstrained decision to confess.
Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998). The question
is, “whether, under the totality of the circumstances, the challenged
confession was obtained in a manner compatible with the requirements of
the Constitution.” Miller v. Fenton, 474 U.S. 104, 112 (1985).
Here, Detective Nuttall and Brown both testified that, as a result of the
interrogation about the murder, Brown signed two statements of confession.
Prior to the interrogation, Detective Nuttall read Brown his Miranda5 rights
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Miranda v. Arizona, 384 U.S. 436 (1966).
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and completed the City of Chester Police Department Statement of Rights
Waiver Form with Brown. N.T. Trial, 10/26/06, at 59. Detective Nuttall
testified that Brown indicated his understanding and signed the form, which
was entered into evidence. Id. at 61. Detective Nuttall further testified that
he did not force, coerce, or induce Brown to sign or write the statements.
Id. at 81, 85. The jury, who had received an instruction regarding
voluntariness, found Detective Nuttall’s testimony credible and concluded
that the confession was voluntary. The PCRA court affirmed this credibility
determination and, because it is supported by the record, we will not disturb
it. Ford, supra.
In his third issue, Brown asserts that trial counsel was ineffective for
failing to file a motion requesting the disclosure of statements and identities
of confidential informants. The Commonwealth has a qualified privilege to
withhold the identity of a confidential informant. Commonwealth v.
Marsh, 997 A.2d 318, 321 (Pa. 2010). To overcome the privilege and
obtain a confidential informant’s identity, a defendant must first establish
that the information sought is material to the preparation of the defense and
that the request is reasonable. Id.; see also Pa.R.Crim.P. 573(B)(2)(a)(i).
In its opinion, the PCRA court addressed this claim and concluded that
it lacked merit because Brown did not present any evidence that the
informants’ statements or identities were material to his case. PCRA Court
Opinion, 7/21/14, at 7. We agree with the PCRA court’s conclusion that trial
counsel did not render ineffective assistance when he failed to file a motion
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requesting the disclosure of the statements and identities of certain
confidential informants.
In his fourth issue, Brown argues that trial counsel was ineffective for
failing to object to several instances of prosecutorial misconduct during
closing argument. Specifically, Brown alleges that the prosecutor’s comment
that defense counsel was trying to obscure the facts by creating a “a web of
confusion,” N.T. Trial, 10/27/06, at 80, as well the prosecutor’s vouching for
a witness and characterization of Brown as a killer constituted prosecutorial
misconduct.
Prosecutorial misconduct will be found if the argument results in
prejudice to the defendant. It does so when:
[T]he unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias and
hostility toward the defendant, thus impeding their ability to
weigh the evidence objectively and render a true verdict. Due to
the nature of a criminal trial, both sides must be allowed
reasonable latitude in presenting their cases to the jury.
Prosecutorial misconduct will not be found where comments
made were done for oratorical flair.
Commonwealth v. Miller, 897 A.2d 1281, 1291 (Pa. Super. 2006).
Upon our review of the trial transcript, we agree with the PCRA court
that the prosecutor’s statements were grounded in the record, not in his own
personal judgment. PCRA Court Opinion, 7/21/14, at 7; see also N.T. Trial,
10/27/06, at 87-89. Additionally, Brown fails to demonstrate how the
prosecutor’s comments were more than oratorical flair and whether they
prejudiced the jurors. Accordingly, we discern no prosecutorial misconduct.
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Miller, supra. Because trial counsel cannot be deemed ineffective for
failing to make baseless objections, we find this claim meritless.
In his fifth issue, Brown argues that trial counsel was ineffective for
failing to object to the prosecutor’s unethical conduct when he spoke to
Detective Nuttall regarding his testimony during a recess.
A defendant is not entitled to relief for a claim of prosecutorial
misconduct unless the unavoidable effect of the prosecutor’s
actions is to prejudice the jury so that a true verdict cannot be
rendered because the existence of bias and hostility makes it
impossible to weigh the evidence in a neutral manner.
Commonwealth v. Hill, 666 A.2d 642, 647 (Pa. 1995).
Again, we discern no prosecutorial misconduct that would entitle
Brown to relief. Id. Detective Nuttall was not sequestered and the court did
not prohibit him from speaking with the prosecutor. Nor does Brown allege
how the conversation prejudiced the jury. Accordingly, this claim is also
meritless.
In his final issue, Brown asserts that trial counsel was ineffective for
failing to request a jury instruction on the lesser offense of voluntary
manslaughter. Voluntary manslaughter is defined as:
A person who kills an individual without lawful justification
commits voluntary manslaughter if at the time of the killing he is
under sudden and intense passion resulting from serious
provocation by: (1) the individual killed; or (2) another whom
the actor endeavors to kill, but he negligently or accidentally
causes the death of the individual killed.
18 Pa.C.S. § 2503.
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We agree with the PCRA court that there was insufficient evidence
introduced at trial to warrant an instruction for voluntary manslaughter.
Additionally, Brown would not have been entitled to the instruction because
the victim’s conduct, a slap, did not constitute a “serious provocation.” See
Commonwealth v. Sheppard, 648 A.2d 563, 566 (Pa. Super. 1994).
Because trial counsel cannot be deemed ineffective for failing to request an
instruction Brown was not entitled to, this claim is also meritless.
For the foregoing reasons, we find Brown’s claims of ineffective
assistance of counsel to fail. Ford, supra. Accordingly, we affirm the order
of the PCRA court dismissing Brown’s PCRA petition.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2015
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