J.S23039/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
KHALID ABDUL BRAKE, :
:
Appellant :
: No. 1877 EDA 2015
Appeal from the PCRA Order June 2, 2015
in the Court of Common Pleas of Chester County Criminal Division
at No(s): CP-15-CR-00001675-2008
BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 14, 2016
This matter returns after a prior panel of this Court remanded for
determinations of whether (1) Appellant, Khalid Abdul Brake, was
abandoned by counsel in his appeal from the denial of his second Post
Conviction Relief Act1 (“PCRA”) petition and (2) his third pro se PCRA petition
seeking reinstatement of that appeal was timely filed. See Commonwealth
v. Brake, 807 EDA 2014 (Pa. Super. Aug. 29, 2014) (unpublished
memorandum at 9). Appellant now appeals pro se from the order of the
Chester County Court of Common Pleas dismissing his third PCRA petition as
untimely filed. He contends (1) he is entitled to a reinstatement of his
appellate rights from the dismissal of his second, timely PCRA, (2) all prior
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J.S23039/16
PCRA counsel were ineffective, (3) his sentences for rape and statutory
sexual assault should have merged, and (4) his trial counsel was ineffective
for failing to place sidebar conference on the record and failing to bolster his
credibility at trial by asserting he conceded sexual intercourse with the
victim, but denied forcible compulsion. We affirm.
This Court previously summarized the procedural history of this
appeal.
A jury convicted Appellant on January 14, 2009, of three
counts of indecent assault[2] and one count each of rape,[3]
statutory sexual assault,[4] sexual assault,[5] and corruption
of minors.[6] On April 22, 2009, the [trial] court sentenced
Appellant to an aggregate term of eight and one-half (8½)
to twenty (20) years’ imprisonment. This Court affirmed
the judgment of sentence on November 24, 2010, and
Appellant did not seek further review with the
Pennsylvania Supreme Court.
On January 5, 2011, Appellant timely filed [a] first
PCRA petition pro se, alleging trial counsel was ineffective
for failing to have the court reporter record sidebars,
closing arguments, and jury instructions. Appellant also
claimed the court imposed an illegal sentence. The court
appointed counsel, who filed a “no-merit” letter pursuant
to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). Appellant filed a pro se
2
18 Pa.C.S. § 3126(a)(1)-(2), (8).
3
18 Pa.C.S. § 3121(a)(1).
4
18 Pa.C.S. § 3122.1.
5
18 Pa.C.S. § 3124.1.
6
18 Pa.C.S. § 6301(a)(1).
-2-
J.S23039/16
response to the “no-merit” letter on May 6, 2011. On May
11, 2011, the [PCRA] court issued notice of its intent to
dismiss the petition without a hearing, pursuant to
Pa.R.Crim.P. 907. Appellant did not respond to the Rule
907 notice, and the court denied PCRA relief on June 6,
2011. That same day, the court permitted PCRA counsel
to withdraw. Appellant did not file a notice of appeal.
On August 12, 2011, Appellant filed a second and timely
pro se PCRA petition. In it, Appellant argued trial counsel
was ineffective for failing to present an opening statement.
Appellant also re-raised his claim regarding trial counsel’s
failure to have the court reporter record certain sidebars.
On August 24, 2011, the Commonwealth filed an answer
asserting Appellant’s issues were waived or previously
litigated. On August 30, 2011, the court issued [a] Rule
907 notice. Appellant filed a pro se response to the Rule
907 notice on September 26, 2011. On September 29,
2011, the court denied PCRA relief.
Appellant timely filed a pro se notice of appeal on
October 27, 2011. On November 16, 2011, the court
appointed counsel [Mark D. Rassman, Esq.,] to represent
Appellant on appeal. [Attorney Rassman] subsequently
filed on Appellant’s behalf a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
On January 3, 2012, [Attorney Rassman] filed a motion to
withdraw representation, which the PCRA court granted on
January 20, 2012. Prior to his withdrawal, [Attorney
Rassman] had yet to file a brief with this Court for the
pending appeal.
On April 10, 2012, this Court remanded the matter as
follows:
AND NOW, this 10th day of April, 2012, counsel
having failed to file a brief on behalf of Appellant,
despite being so ordered, this appeal is REMANDED
for 30 days for a determination as to whether
counsel has abandoned [A]ppellant and to take
further action as required to protect [A]ppellant’s
right to appeal. The [PCRA] court shall notify this
Court, in writing, within the 30-day period, of all
-3-
J.S23039/16
findings and actions taken thereon. Jurisdiction is
retained.
(Order, entered 4/10/12, at 1). On April 27, 2012, the
PCRA court re-appointed [Attorney Rassman] and directed
him to take the necessary steps to protect Appellant’s
rights and prosecute the appeal to its conclusion.
On June 5, 2012, [Attorney Rassman] filed a motion for
remand with this Court, indicating that the PCRA court’s
Rule 1925(a) opinion did not address the issues raised in
Appellant’s counseled Rule 1925(b) statement. [Attorney
Rassman] asked this Court to remand the matter for the
PCRA court to prepare an opinion addressing the issues
raised in the counseled Rule 1925(b) statement. This
Court granted the motion and remanded the case on June
26, 2012. On August 27, 2012, the PCRA court filed a
supplemental opinion. Thereafter, [Attorney Rassman]
failed to file a brief with this Court. This Court dismissed
the appeal on December 21, 2012.
On March 3, 2014, Appellant submitted a pro se filing
styled as a “notice of appeal nunc pro tunc.” Appellant
purported to appeal from the September 29, 2011 order
dismissing his second PCRA petition. The filing did not
actually resemble a notice of appeal; rather, it included
arguments and requests for collateral relief. Specifically,
Appellant indicated, “[G]oing pro se was not his choice.
Due to this case essentially being stuck in limbo,
[A]ppellant has no choice but to go pro se.” (Pro Se Notice
of Appeal Nunc Pro Tunc, filed 3/3/14, at 1). Appellant
acknowledged the PCRA court’s April 27, 2012 order
directing [Attorney Rassman] to represent Appellant
throughout the PCRA appeal process. Appellant also
recognized [Attorney Rassman’s] June 5, 2012 motion for
remand. Appellant seemed unaware, however, of this
Court’s dismissal of his appeal . . . .
* * *
In the remainder of the filing, Appellant re-raised the
claims included in his prior PCRA petitions. Appellant also
complained that PCRA counsel abandoned him during the
prior appeal. In response to Appellant’s pro se filing, the
-4-
J.S23039/16
PCRA court filed a Rule 1925(a) opinion on May 7, 2014,
and it forwarded the certified record to this Court on May
12, 2014.
Brake, 807 EDA 2014 at 1-5 (footnote omitted).
This Court thus regarded Appellant’s March 3, 2014 filing as a third
PCRA petition. We concluded that “a remand [was] necessary to clarify the
record and determine the status of” Attorney Rassman. Id. at 9. Further,
the Court observed that “[t]he PCRA court is in the best position to receive
and evaluate the evidence regarding the timeliness of Appellant’s current
request for PCRA relief.” Id. Accordingly, we ordered the PCRA court to
decide “whether: (1) any of the three exceptions to the time-bar of the PCRA
apply to Appellant’s case; (2) his appellate rights should be reinstated nunc
pro tunc due to counsel’s apparent abandonment; (3) and, Appellant should
have new counsel appointed or proceed pro se.” Id.
Following this Court’s remand, Appellant, again acting pro se, filed a
“petition to reinstate nunc pro tunc” on September 18, 2014. He asserted
he was abandoned by all prior PCRA counsel and restated two of his previous
claims for relief, i.e., that the trial court failed to merge rape and statutory
sexual assault and trial counsel was ineffective for failing to record sidebar
conferences.
On October 24, 2014, the PCRA court entered an order stating that it
“appear[ed] . . . that Mark D. Rassman, Esq., previously appointed PCRA
counsel has withdrawn” from representation. Order, 10/24/14, at 1. The
-5-
J.S23039/16
court regarded Appellant’s September 18, 2014 filing as “an amendment to
his second PCRA petition” and appointed new counsel, Steve E. Jarmon,
Esq., to represent Appellant. Id. The court directed Attorney Jarmon to
determine whether (1) Appellant’s “appellate rights should be reinstated,”
(2) Appellant qualified for a PCRA time-bar exception, and (3) the issues
raised in Appellant’s September 18th filing were previously litigated. Id. at
1-2.
On December 19, 2014, Attorney Jarmon filed a petition for leave to
withdraw as PCRA counsel and a Turner/Finley letter. Appellant responded
pro se, asserting his underlying claims had merit. Notably, Attorney
Jarmon’s letter did not address the issues presented for remand. The PCRA
court, on May 1, 2015, issued a Pa.R.Crim.P. 907 notice of intent to dismiss
the petition, in which it summarized the procedures following remand and
found Appellant’s third PCRA petition untimely.
With respect to the Superior Court’s August 29, 2014
Memorandum remanding the case to the [PCRA] court, as
directed, we initially considered the need to appoint new
PCRA counsel to represent Appellant’s interests. On
October 24, 2014 we appointed [Attorney Jarmon] as
PCRA counsel to represent [Appellant]; however, on
December 19, 2014, Attorney Jarmon filed a Finley
“Petition For Leave To Withdraw As PCRA Counsel” in
which he addressed the claims advanced by [Appellant] in
his September 18, 2014 petition. Counsel did not
specifically consider Appellant’s March 3, 2014 petition,
since the claims raised there were reiterated in
[Appellant’s] September 18, 2014 petition. PCRA counsel
contemporaneously notified [Appellant] in writing that the
substantive claims raised in the latter petition were, in
counsel’s opinion, without legal merit, explained his
-6-
J.S23039/16
reasoning, and informed [Appellant] of his intention to
withdraw as counsel. Initially, PCRA counsel did not
address the timeliness issue, but addressed the
substance of the September 18, 2014 petition. On January
3, 2015, [Appellant] filed a pro se response addressed to
Attorney Jarmon’s concerning his Finley petition, in which
[Appellant] objected to counsel’s legal conclusions and
requested counsel cite the statute(s) and/or case law
supporting counsel’s opinion. Subsequently, Attorney
Jarmon wrote to Appellant on January 26, 2015 at
the [PCRA court’s] direction, seeking information
respecting the timeliness of his September 18, 2014
PCRA petition. Appellant did not respond; however,
[Attorney] Jarmon was notified by the Pennsylvania
Disciplinary Board that Appellant had filed a claim against
him with the Board. On March 12, 2015, Attorney
[Jarmon] communicated with the undersigned and
requested that we grant his petition to withdraw.
We have also considered the issue of the timeliness of
[Appellant’s] Ma[r]ch 3, 2014 petition. The PCRA provides
the exclusive remedy for post conviction claims seeking
restoration of appellate rights due to counsel’s failure to
file necessary papers in order to maintain viable a
[Appellant’s] appeal. Unjustified failure by counsel
constitutes per se “prejudice” for purposes of the PCRA. . .
. Instantly, as a consequence of Attorney Rassman’s
failure to file an appellate brief, Appellant’s claims which
the [PCRA] court rejected in its January 20, 2012 opinion
and supplemental August 27, 2012 opinion have not been
adjudicated on appeal, even though Appellant’s second
PCRA petition was timely filed and he filed a timely appeal
from the [PCRA] court’s dismissal of his second PCRA
petition. The Superior Court’s dismissal of his appeal,
however, is problematic, in that Appellant took no action to
preserve his appellate rights until he filed his manifestly
untimely March 3, 2014 pro se petition seeking
reinstatement of his PCRA appellate rights. While
Appellant’s filings would suggest he was unaware
that his PCRA appeal had been dismissed by the
Superior Court, that information was available to
him in the Chester County Clerk of Court’s office.
Yet, Appellant appears not to have sought such
information, since he does not mention it in his
-7-
J.S23039/16
September 18, 2014 petition or in his January 7,
2015 letter to Attorney Jarmon; nor, did he inquire
of the [PCRA] court about the status of his case. He
did not plead or attempt to prove in his March 3,
2014 petition his entitlement to an exception to the
one-year filing requirement.
* * *
. . . Following dismissal of his appeal by the Superior
Court, [Appellant] did not seek further relief until he filed
his notice of appeal seeking nunc pro tunc appellate relief
on March 3, 2014, more than 14 months after Superior
Court dismissed [Appellant’s] appeal on December 21,
2012. The question thus becomes whether the
dismissal was unknown to the [Appellant], or
whether he had a reasonable means by which to
ascertain the status of his appeal before March 3,
2014 in the exercise of due diligence. All filings
affecting [Appellant’s] case were matters of public record
in the Office of the Chester County Clerk of Courts.
Accordingly, [Appellant’s] March 3, 2014 petition,
considered as a petition seeking collateral PCRA relief, is
patently untimely because [Appellant] cannot successfully
prove that the Superior Court’s dismissal of his appeal
could not have been earlier ascertained by him by the
exercise of due diligence in order to bring himself within
the foregoing exceptions.
Considering [Appellant’s] failure to respond to
Attorney Jarmon’s inquiry seeking information on
the timeliness of his March 3, 2014 petition and
PCRA counsel’s inability to secure communication
from Appellant on this issue, and further considering
[Appellant]’s failure to address compliance with the
PCRA’s time limitations in his petition, we find his
March 3, 2014 PCRA petition to be untimely, leaving us
without jurisdiction to consider his claim or to grant relief
to allow him to appeal nunc pro tunc.
PCRA Ct. Op. 5/1/15, at 9-13 (citations omitted and emphases added).
-8-
J.S23039/16
Appellant filed a pro se response to the PCRA court’s Pa.R.Crim.P. 907
notice, asserting he was unaware of the dismissal of his appeal until he
received a copy of our August 29, 2014 memorandum. Appellant’s Resp.,
5/21/15, at 4. He suggested that this Court’s August 29, 2014
memorandum decision recommended that he “be granted the right to appeal
nunc pro tunc” and asserted Attorney Jarmon failed to consider that
decision. Id. at 4. The remainder of Appellant’s response focused on his
merger and ineffectiveness claims.
The PCRA court, on June 2, 2015, entered the instant order dismissing
Appellant’s third PCRA petition as untimely and granted Attorney Jarmon’s
petition to withdraw from representation. Appellant timely filed a notice of
appeal. The court did not order a Pa.R.A.P. 1925(b) statement, but filed a
supplemental Pa.R.A.P. 1925(a) opinion.
Appellant, in his pro se brief, presents the following questions and
claims for review:
Whether once again Appellant’s PCRA counsel abandoned
Appellant’s right to go forward nunc pro tunc[?]
Whether the court abused its discretion to allow PCRA
counsel to withdraw, [and] not to go with the Superior
[C]ourt’s recommendat[ion] to allow Appellant to go
forward nunc pro tunc[?]
Based on testimony by the victim there is no doubt that
Appellant[’s] charges had to do with the legal
interpretation of that one act, making the sentence illegal.
Whether it was ineffective of trial counsel to waive
substantive legal matters off the record of sidebars[?]
-9-
J.S23039/16
Whether it was ineffective of trial counsel not to allow the
[j]ury to know before Appellant took the stand, on four
charges, that Appellant claimed his innocence of charges
and was guilty of others[?]
Appellant is challenging all three counsels who were
allowed to withdraw on his PCRA, ineffective and
abandonment on all issues.
Appellant’s Brief at 6.
We summarize Appellant’s arguments as follows. First, he argues that
he was abandoned by Attorney Rassman and that a breakdown in court
operations should excuse the fourteen-month delay in seeking nunc pro tunc
relief in the appeal from the denial of his second PCRA petition. Id. at 15.
He suggests all appointed PCRA counsel were ineffective and abandoned his
appellate rights. Id. at 9. Second, he contends the trial court impermissibly
sentenced him to six and one-half to fifteen years’ imprisonment for rape
and a consecutive two to five years’ imprisonment for statutory sexual
assault based on a single criminal transaction. Id. at 16. Third, he
contends that his trial counsel’s failure to have sidebar conferences
transcribed deprived him of the ability to take a meaningful appeal. Id.
Fourth, Appellant asserts that his trial counsel was ineffective for not
bolstering his credibility that he and victim engaged in consensual sexual
intercourse by emphasizing he intended to plead guilty to, inter alia,
statutory sexual assault. Id. at 29-31. No relief is due.
- 10 -
J.S23039/16
Our review of an order dismissing a PCRA petition is limited to whether
the findings of the PCRA court are supported by the record and free of legal
error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
Our standard of review over the PCRA court’s legal conclusions is de novo.
Id.
Preliminarily, we must return to the issues in the present appeal as
defined by our prior remand. See Brake, 807 EDA 2014 at 9. First, we find
no support in the record for the PCRA court’s determination that Attorney
Rassman appeared to withdraw before or after the dismissal of the appeal
from the denial of Appellant’s second PCRA petition. There is no indication
Attorney Rassman properly sought leave to withdraw or attempted to
comply with this Court’s requirement to apprise Appellant of the dismissal of
his appeal. Thus, we conclude Attorney Rassman abandoned Appellant by
failing to file a brief and failing to apprise him of the dismissal of the appeal.
Second, as to the timeliness of Appellant’s third PCRA petition,
Pennsylvania law makes clear that when “a PCRA petition
is untimely, neither this Court nor the trial court has
jurisdiction over the petition.” The “period for filing a
PCRA petition is not subject to the doctrine of equitable
tolling; instead, the time for filing a PCRA petition can be
extended only if the PCRA permits it to be extended [.]”
This is to “accord finality to the collateral review process.”
“However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition,
set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
met.”
- 11 -
J.S23039/16
Miller, 102 A.3d at 992-93 (citations omitted). The abandonment by
counsel on appeal constitutes a previously unknown fact giving rise to a
claim for a timeliness exception under Section 9545(b)(1)(ii). However, the
petitioner “must also prove that the facts were ‘unknown’ to him and that he
could not uncover them with the exercise of ‘due diligence.’”
Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). Moreover,
the petitioner must plead the exception within sixty day of when it “could
have been presented.” Id. at 1272 n.11 (discussing 42 Pa.C.S. §
9545(b)(2)). Due diligence is a fact-specific inquiry, even if a matter is of
“public record.” See id. at 1274.
Instantly, the PCRA court determined that Appellant failed to establish
due diligence in discovering Attorney Rassman’s abandonment and thus
failed to plead or prove an exception to the PCRA time-bar. See 42 Pa.C.S.
§ 9545(b)(1)(ii). Appellant responded pro se to the court’s Pa.R.Crim.P. 907
notice, but failed to allege any facts suggesting he exercised due diligence.
In light of the foregoing, we have no basis to disturb the PCRA court’s
determination that Appellant’s third PCRA petition failed to plead a PCRA
time-bar exception. See Miller, 102 A.3d at 992-93.
However, the PCRA court’s appointment of Attorney Jarmon following
remand is problematic. Although there is no right to counsel on a second or
subsequent PCRA petition, the court acted within its discretion to appoint
counsel to determine the timeliness of that petition. See Pa.R.Crim.P.
- 12 -
J.S23039/16
904(E); see also Brake, 807 EDA 2014 at 9 (permitting PCRA court to
appoint counsel). Subsequently, Attorney Jarmon filed a Turner/Finley
letter that failed to consider the issue of timeliness of Appellant’s third PCRA
petition, and his attorney-client relationship with Appellant broke down after
the filing of the no-merit letter. The PCRA court then permitted Attorney
Jarmon to withdraw based on a clearly deficient Turner/Finley letter,
without compliance to the court’s initial appointment order, and over
Appellant’s claims of counsel’s ineffectiveness in his response to the court’s
Pa.R.Crim.P. 907 notice.
Given the procedural irregularities following remand, we could also
remand this matter again based on the lack of meaningful representation
following the appointment of counsel to determine if Appellant’s third PCRA
petition was timely. See Commonwealth v. Jackson, 965 A.2d 280, 283
(Pa. Super. 2009); cf. Commonwealth v. Karanicolas, 836 A.2d 940, 946
(Pa. Super. 2003). We decline to do so, however, because this matter does
not involve the right to counsel in a first PCRA petition, and because a
review of Appellant’s underlying claims for relief reveals they are
procedurally barred and, in any event, frivolous on their face.
To be entitled to PCRA relief, a petitioner must establish “[t]hat the
allegation of error has not been previously litigated or waived.” 42 Pa.C.S. §
9543(a)(3). An issue is “previously litigated” when, in relevant part, “it has
been raised and decided in a proceeding collaterally attacking the conviction
- 13 -
J.S23039/16
or sentence.” Id. §9544(a)(3). “[A]n issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state postconviction proceeding.” Id. § 9544(b).
As emphasized above, the procedural posture of this appeal is limited
to Appellant’s third PCRA petition seeking reinstatement of his appeal from
the denial of his second PCRA petition. Thus, were relief granted on that
issue we would address only those claims properly presented in his second
PCRA petition. However, because Appellant’s claims that (1) his sentence
was illegal under the merger doctrine and (2) trial counsel was ineffective for
failing to transcribe the sidebar conferences were raised in his first PCRA
petition and denied by the PCRA court, they have been previously litigated
under 42 Pa.C.S. § 9544(a)(3). Further, Appellant’s claim that trial counsel
was ineffective for emphasizing that he conceded guilt to statutory sexual
assault while contesting the element of forcible compulsion for rape under 18
Pa.C.S. § 3121(a)(1) is waived for failure to raise it in his first PCRA petition.
See 42 Pa.C.S. § 9544(b). Thus, Appellant’s claims are procedurally barred.
In any event, Appellant’s claims are also frivolous. This Court has
repeatedly held that rape by forcible compulsion and statutory sexual assault
do not merge, even if they arise from a single incident. See
Commonwealth v. Jackson, 111 A.3d 1187, 1188-89 (Pa. Super. 2015),
appeal denied, 125 A.3d 1199 (Pa. 2015); Commonwealth v. Parham,
969 A.2d 629, 634 (Pa. Super. 2009). Appellant’s claim that trial counsel
- 14 -
J.S23039/16
was ineffective for failing to transcribe sidebar conferences with his court
relies on sheer speculation that he suffered prejudice. Appellant’s
contention that trial counsel failed to emphasize he admitted consensual
sexual intercourse but denied forcible compulsion wholly ignores that the
jury had the benefit of his own testimony at trial to that effect.
Thus, we conclude that a remand the appointment of counsel would be
futile, cf. Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006)
(noting that “[t]he law does not require the performance of a futile act”),
and affirm the order dismissing Appellant’s third PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2016
- 15 -