J-S50006-15
J-S50007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL BROWN A/K/A LEO REED
Appellant No. 2662 EDA 2014
2663 EDA 2014
Appeal from the PCRA Order September 3, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007790-2004
CP-09-CR-0000224-2005
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL BROWN A/K/A LEO REED
Appellant No. 2295 EDA 2014
Appeal from the PCRA Order June 27, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007555-2004
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 30, 2015
In this consolidated appeal, Appellant Michael Brown appeals from two
separate orders denying his petitions pursuant to the Post Conviction Relief
Act (“PCRA”). Additionally, Brown’s court-appointed attorney in both
J-S50006-15
J-S50007-15
appeals, Stuart Wilder, Esq., has filed an application to withdraw his
appearance pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
After careful review, we grant Attorney Wilder’s application to withdraw in
both appeals and affirm the orders dismissing Brown’s PCRA petitions.
The underlying convictions at issue in this appeal arise from two
separate trials. After the first, a jury convicted Brown of two counts of
robbery. After the second, a jury convicted Brown of multiple crimes of
sexual violence. The trial court sentenced Brown in a single proceeding
covering all of these convictions, and imposed an aggregate term of
incarceration of thirty-four to sixty-eight years of imprisonment. This Court
affirmed his judgment of sentence, and Brown’s petition for allowance of
appeal was denied by the Supreme Court of Pennsylvania on December 20,
2010.
On December 12, 2011, Brown filed a PCRA petition. New counsel was
appointed to represent Brown, and amended petitions were filed in February
2013, while evidentiary hearings were held in June 2014. On June 27, 2014,
the PCRA court denied Brown’s PCRA petition challenging his convictions for
crimes of sexual violence, and on September 3, 2014, denied his PCRA
petition challenging his convictions for robbery. These timely appeals
followed.
-2-
J-S50006-15
J-S50007-15
In both appeals, Attorney Wilder has requested leave to withdraw his
appearance. Our Supreme Court has summarized the procedure for
withdrawal of court-appointed counsel in collateral attacks on criminal
convictions as follows.
Independent review of the record by competent counsel is
required before withdrawal is permitted. Such independent
review requires proof of:
1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his [or her] review;
2) A “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of
why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (citations
omitted). Additionally, this Court has added a requirement
that PCRA counsel who seeks to withdraw must
contemporaneously serve a copy on the petitioner of counsel’s
application to withdraw as counsel, and must supply to the
petitioner both a copy of the “no-merit” letter and a statement
advising the petitioner that, in the event that the court grants
the application of counsel to withdraw, he or she has the right to
proceed pro se or with the assistance of privately retained
counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011)
(emphasis omitted; citation omitted). Attorney Wilder has complied, in both
appeals, with the mandates of Turner and Finley, as summarized in Pitts,
-3-
J-S50006-15
J-S50007-15
as well as complying with the mandate of Widgins. Other than requesting
an extension of time to reply, which this Court granted, Brown has not
replied to Attorney Wilder’s Finley letters. Thus, we must determine
whether we agree with counsel’s assessment of Brown’s claims.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, ___ U.S. ___, 134 S. Ct. 639 (2013). We
review the PCRA court’s legal conclusions de novo. See Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011).
Regarding Brown’s convictions for robbery, Attorney Wilder identifies
two preserved issues that Brown desires to raise, both of which challenge
the effectiveness of trial counsel.
[T]o prevail on his ineffectiveness allegations, Appellant must
demonstrate that the underlying claim is of arguable merit; that
no reasonable strategic basis existed for counsel’s act or
omission; and that counsel’s error resulted in prejudice, or, in
other words, that there is a reasonable probability that the
outcome would have been different.
Commonwealth v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008) (citation
omitted).
“Arguable merit exists when the factual statements are accurate and
could establish cause for relief. Whether the facts rise to the level of
arguable merit is a legal determination.” Commonwealth v. Barnett, ___
-4-
J-S50006-15
J-S50007-15
A.3d ___, ___, 2015 WL 4550107 at *3 (Pa. Super., filed July 29, 2015)
(citation omitted). “In considering whether counsel acted reasonably, we
look to whether no competent counsel would have chosen that action or
inaction.” Id. (citation omitted). We also consider whether “the alternative,
not chosen, offered a significantly greater potential chance of success.” Id.
(citation omitted).
[P]rejudice exists where there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. This probability is sufficient when it undermines
confidence in the outcome of the proceeding. Counsel is
presumed to have rendered constitutionally effective
representation.
Barnett, supra at *3 (citation omitted).
We begin by noting that Brown was granted the unusual opportunity to
act as pro se co-counsel to trial counsel, or as he described it, hybrid
representation. Pursuant to this hybrid representation, the trial court
allowed Brown to question certain witnesses and present arguments himself.
“[W]e will not consider any ineffectiveness claims that arise from [a] period
of self-representation.” Commonwealth v. Bryant, 855 A.2d 726, 737
(Pa. 2004) (citations omitted). Furthermore, an appellant may not bootstrap
an ineffectiveness claim by claiming counsel failed, at a subsequent point in
trial, to correct an error that originally arose during self-representation. See
id., at 740.
In his first issue, Brown argues that trial counsel was ineffective for
failing to move to strike a prospective juror who admitted to frequenting one
-5-
J-S50006-15
J-S50007-15
of the convenience stores Brown was charged with robbing.1 A trial court
may refuse to strike a juror for cause if the court believes that the juror
would be fair and impartial. See Commonwealth v. Koehler, 737 A.2d
225, 238 (Pa. 1999). Thus, to qualify for PCRA relief, Brown was required to
prove that the trial court would not have found the juror at issue capable of
being fair and impartial. No juror testified to anything beyond a passing,
casual acquaintance with the witness. Every juror also testified that his or
her knowledge of the witness would pose no obstacle to being fair and
impartial. The evidence of record establishes only that the juror(s) in
question had only an attenuated relationship to the witness, and that this
relationship would not hinder his or her duties as a juror.
Furthermore, the witness testified that he could not identify Brown as
the man who committed the robbery. See N.T., Trial, 10/22/07, at 62.
Thus, the jury could have credited everything the witness testified to, and
still acquitted Brown, if it concluded that the circumstantial evidence
implicating Brown was insufficient.
____________________________________________
1
In fact, during voir dire, at least two prospective jurors, numbers 18 and
34, testified to frequenting the store that was robbed. See N.T., Voir Dire,
10/22/07, at 10-11. Later, during trial, two jurors, identified as numbers 1
and 7, testified to being acquainted with the clerk who had been working
when the store was robbed. See N.T., Trial, 10/22/07, at 57-58; 99-100. It
is unclear from the record before us whether these were the same two
jurors, or whether a total of 4 jurors were involved. However, in any event,
after each instance, the juror in question testified that his or her knowledge
would not cause any difficulty to the juror’s duty to be a fair and impartial
juror.
-6-
J-S50006-15
J-S50007-15
Brown has presented no evidence that a juror was biased or partial,
and therefore, we conclude that the PCRA court did not err in concluding
that Brown had failed to meet his burden of establishing that the trial court
would have removed the juror(s) in question. Therefore, Brown did not
establish actual merit to his claim of ineffectiveness of counsel, and we
agree with Attorney Wilder that this issue merits no relief.
In his second identified issue, Attorney Wilder notes that Brown
desires to argue that trial counsel was ineffective in failing to object to
hearsay statements made by the investigating officer at trial. Specifically,
Brown contends that trial counsel should have objected to testimony
regarding a description of the robber given to the investigator shortly after
the robbery occurred. As noted previously, however, Brown cannot
successfully allege his own ineffectiveness. Since Brown, and not trial
counsel, performed the cross-examination of the investigator, he was also
responsible for objecting to any testimony elicited by the Commonwealth
during re-direct. See N.T., Trial, 10/18/07, at 45 (the trial court explaining
to Brown that he would be solely responsible for any witness he questioned,
and trial counsel would be solely responsible for any witness he questioned).
We therefore agree with Attorney Wilder that this claim has no merit. 2
____________________________________________
2
In any event, the PCRA court found that while the statement was indeed
hearsay, it was admissible evidence since Brown had opened the door to the
testimony during his cross-examination of the investigator. We agree.
(Footnote Continued Next Page)
-7-
J-S50006-15
J-S50007-15
Turning to Brown’s PCRA petition challenging his convictions for crimes
of sexual violence, Brown raises three claims, all based upon assertions of
ineffectiveness of trial counsel. In the first claim identified by Attorney
Wilder, Brown claims that trial counsel was ineffective for failing to obtain
DNA testing of the victim’s underwear. We conclude that Brown has failed to
establish that this failure to test the underwear prejudiced Brown. If the
underwear had been tested, one of three results would have ensued. First,
it is possible that the results would have been inconclusive, as they were the
first time the underwear was tested.3 In the alternative, it is possible that
the testing would have revealed DNA matching Brown’s on the underwear.
The final possibility is that DNA not matching Brown’s would be found.
If the test returned inconclusive results, Brown would have been in the
exact same position he was in without the testing. In the alternative, if the
test returned a result matching Brown’s DNA, we cannot discern how such
_______________________
(Footnote Continued)
“[W]hen a party raises an issue on cross-examination, it will be no abuse of
discretion for the court to permit re-direct on that issue in order to dispel
any unfair inferences.” Commonwealth v. Fransen, 42 A.3d 1100, 1117
(Pa. Super. 2012) (citation omitted). Here, during his cross-examination of
the investigator, Brown opened the door to the hearsay statements by
inquiring about the details of the information given to him by the clerk. See
N.T., Trial, 10/22/07, at 85.
3
The underwear had been tested for DNA by the Commonwealth previously,
resulting in a conclusion that no semen was found on the underwear to test.
See N.T., PCRA Hearing,6/23/14 at 43. The analyst who performed the test
died prior to trial. As a result, the Commonwealth had the victim’s coat,
pants, and rectal smear, but not the underwear, re-tested for use at trial.
-8-
J-S50006-15
J-S50007-15
evidence would have had exculpatory value to Brown.4 Only in the third
scenario could the test results have held exculpatory value.
It is undisputed that the underwear was only tested the first time.
Therefore, the best evidence of what results would have been generated
from a re-test is the result from the initial test: no semen was present. As
such, Brown has failed to meet his burden to prove that he suffered
prejudice from the lack of a re-test of the underwear. We agree with
Attorney Wilder that this issue has no merit.
In his next asserted claim, Brown contends that trial counsel was
ineffective for stipulating to the chain of custody of the garments subjected
to DNA testing. Specifically, Brown argues that the stipulation prevented
him from arguing that his DNA was not found on the victim’s underwear.
This claim has no merit, as the stipulations at issue do not explicitly or
implicitly concern the DNA testing results. Rather, the stipulations merely
provide for the chain of custody of the garments. Brown provides no
argument or evidence that the stipulations are fraudulent or misleading.
Therefore, Brown has failed to meet his burden in establishing arguable
merit or prejudice, and this issue has no merit.
____________________________________________
4
Since Brown had alleged that he had engaged in prior consensual sexual
relations with the victim, the presence of his DNA on the underwear would
not necessarily have been inculpatory, but it is difficult to imagine an
argument that it would have been exculpatory.
-9-
J-S50006-15
J-S50007-15
The final issue identified by Attorney Wilder is whether trial counsel
was ineffective for failing to object to an instruction given by the trial court
to the jury. Specifically, in response to a question from the jury, the trial
court instructed the jury that “the only items tested were the pants, the
jacket, and the rectal swabbings. The underwear was not tested.” N.T.,
Trial, 12/3/07, at 148. Brown contends that this instruction was erroneous.
In essence, Brown has seized upon an ambiguity in the term “tested.”
The Commonwealth and the PCRA court conclude that the term refers only
to DNA testing, and there is no dispute that no sample from the underwear
was ever subjected to DNA testing. In contrast, Brown concludes that
“tested” refers to the examination of the underwear to determine if semen
was present. The answer as to whether the underwear was “tested” in this
sense is also undisputed; it was.
In any event, Brown cannot prevail on this claim. Brown represented
himself during closing argument. See N.T., Trial, 12/3/07, at 10-69.
Furthermore, despite having presented argument on the issue just seconds
before, Brown did not object to the trial court’s proposed instruction. See
id., at 147. As a result, we conclude that Brown was representing himself at
the time, and his failure to object cannot form the basis of a claim of trial
counsel’s ineffectiveness. Thus, we agree with Attorney Wilder that there is
no merit to Brown’s final issue.
- 10 -
J-S50006-15
J-S50007-15
As a result, we concur with Attorney Wilder’s conclusion that Brown’s
appeals are wholly without merit. Our independent review of the record
furthermore reveals no other issues of arguable merit. We therefore grant
Attorney Wilder’s applications to withdraw, and affirm both orders denying
PCRA relief.
Orders affirmed. Applications for withdrawal of appearance granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
- 11 -