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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RALPH ROGERS
Appellant No. 2790 EDA 2015
Appeal from the PCRA Order August 12, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000952-2010
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED MAY 09, 2016
Appellant, Ralph Rogers, appeals from the August 12, 2015 order,
denying his first petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
We summarize the relevant procedural history of this case as follows.
On March 4, 2010, the Commonwealth filed an information charging
Appellant with one count each of burglary, criminal trespass, receiving stolen
property, resisting arrest, and disorderly conduct.1 Appellant proceeded to a
jury trial on May 26, 2010, at the conclusion of which the jury found
Appellant guilty of burglary and resisting arrest. The Commonwealth
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3925(a), 5104, and 5503(a)(4),
respectively.
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withdrew the remaining three charges before trial. On July 26, 2010, the
trial court imposed an aggregate sentence of 80 to 264 months’
imprisonment. Appellant filed a timely post-sentence motion on August 2,
2010, which the trial court denied on October 8, 2010. Appellant filed a
timely notice of appeal, and this Court affirmed the judgment of sentence on
April 17, 2012, and our Supreme Court denied allocatur on August 31, 2012.
Commonwealth v. Rogers, 48 A.3d 479 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 51 A.3d 838 (Pa. 2012).
On August 26, 2013, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel, who filed an amended petition on April 2,
2015. The Commonwealth filed its answer on June 29, 2015. The PCRA
court conducted an evidentiary hearing on July 31, 2015. On August 12,
2015, the PCRA court entered an order denying Appellant’s PCRA petition.
On September 10, 2015, Appellant filed a timely notice of appeal.2
On appeal, Appellant presents the following two issues for our review.
I. Was the [PCRA c]ourt in error in denying
[Appellant]’s [PCRA petition] alleging that
[t]rial [c]ounsel failed to communicate with
him prior to the commencement of [t]rial?
II. Was the [PCRA c]ourt in error in denying
[Appellant]’s [PCRA petition] alleging that
[t]rial [c]ounsel did not adequately prepare
and did not fully understand the issues nor
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2
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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strategy that [Appellant] wished to pursue in
his defense?
Appellant’s Brief at 4.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
The Sixth Amendment to the Federal Constitution provides, in relevant
part, “[i]n all criminal prosecutions, the accused shall enjoy the right … to
have the Assistance of Counsel for his defence.”3 U.S. Const. amend. VI.
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3
Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
(Footnote Continued Next Page)
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The Supreme Court has long held that the Counsel Clause includes the right
to the effective assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).
In analyzing claims of ineffective assistance of counsel, “[c]ounsel is
presumed effective, and [appellant] bears the burden of proving otherwise.”
Fears, supra at 804 (brackets in original; citation omitted). To prevail on
any claim of ineffective assistance of counsel, a PCRA petitioner must allege
and prove “(1) the underlying legal claim was of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and (3) the
petitioner was prejudiced—that is, but for counsel’s deficient stewardship,
there is a reasonable likelihood the outcome of the proceedings would have
been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence
fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80
A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.
Pennsylvania, 135 S. Ct. 50 (2014).
Although couched as two issues, we address both of Appellant’s issues
together, because his brief states that he relies on his first issue in support
of his second issue. Appellant’s Brief at 11. Appellant avers that trial
_______________________
(Footnote Continued)
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.
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counsel was ineffective because he “did not communicate with [Appellant]
prior to the commencement of [t]rial.” Id. at 8. In Appellant’s view, “[t]he
only time that [Appellant] talked to his attorney after the [p]retrial
[c]onference was a day or two before [t]rial and the only conversation then
was [trial counsel] informing his client that [t]rial was starting on the 27 th.”
Id. Appellant purports to rely on our Supreme Court’s decision in
Commonwealth v. Brooks, 839 A.2d 845 (Pa. 2003).
In Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super. 2012) (en
banc), appeal denied, 63 A.3d 1245 (Pa. 2013), this Court discussed Brooks
and applied it to a similar claim to the one in this case.
In Brooks, the appellant was convicted of first-
degree murder and sentenced to death following a
trial where he elected to proceed pro se. Brooks,
supra at 247. At the beginning of jury selection, the
appellant informed the trial court that he wished to
represent himself because his attorney had not met
with him at any time up to that point. Id. at 247
n.3. His attorney testified that he could only recall
one telephone conversation with his client prior to
trial, and that lasted no more than half an hour. Id.
at 249. His attorney also testified that he did not
meet with Brooks while he was in prison because he
was not “looking forward to spending any time alone
with Mr. Brooks.” Id. In finding that Brooks’
attorney had no reasonable basis for not meeting
with his client, the Court concluded the following.
General fear of a potential conflict in the
lawyer-client relationship and a busy schedule
simply cannot serve as a reasonable basis for
failing to have personal contact with a client
prior to that client’s trial on capital charges.
To the contrary, failure to do so is ‘simply an
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abdication’ of the most basic expectations of
defense counsel in a capital case.
Id. at 250. The Court held that “the very nature of a
capital case ... clearly necessitates at least one in-
person meeting between a lawyer and his client
before trial begins.” Id. at 249. Moreover, our
Supreme Court noted “no lawyer, no matter how
talented and efficient, can possibly forge a
meaningful relationship with his client and obtain
adequate information to defend that client against
first-degree murder charges in a single thirty-minute
telephone conversation.” Id.
Id. at 243. Applying our understanding of Brooks in Johnson, this Court
concluded the defendant was not entitled to a new trial.
[Johnson] avers that because [trial counsel] failed to
meet with him face-to-face until the eve of his trial,
he is entitled to relief under Brooks. We disagree.
Our Supreme Court emphasized in Brooks that
Brooks’ attorney failed to meet with his client “at
all.” [Brooks, supra] at 248. In this case, [trial
counsel] represented [Johnson] at his preliminary
hearing and criminal arraignment, conducted a face-
to-face meeting at his preliminary hearing,
conducted another face-to-face meeting at the prison
with [Johnson] prior to trial, and performed at least
one telephone consultation. PCRA Court Opinion,
7/7/10, at 11–12, citing N.T., 3/6/06, at 48–49;
N.T., 3/6/06, at 73–74. While we acknowledge that
more contact may have been advisable, we disagree
with [Johnson] that the length and frequency of the
consultations alone can support a finding of
ineffectiveness. We further decline to read Brooks
so rigidly that we are precluded from evaluating the
substantive impact of the consultations [trial
counsel] did perform.
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Id. at 243-244. Turning to our evaluation of trial counsel’s performance, we
noted that even with the admittedly limited meetings, trial counsel ably put
on a defense for Johnson.
The record in this case establishes
unequivocally that [trial counsel] retained an
investigator who testified at the evidentiary hearings
that he had interviewed numerous witnesses prior to
trial[,] presumably at [trial counsel]’s request[,] and
that five of those witnesses end[ed] up testifying at
trial for the defense. Even the alleged alibi witness,
Ronald Crawford, who did not appear to testify at
trial, was the subject of extensive efforts on the part
of the investigator to secure him as a defense
witness. In addition, the record clearly establishes
that [trial counsel] subjected all of the
Commonwealth[’s] witnesses to meaningful and
effective scrutiny and cross-examination.
Id. at 244, quoting PCRA Court Opinion, 7/7/10, at 13–14. Therefore, we
concluded that Brooks did not entitle Johnson to a new trial. Id.
Consistent with Johnson, the PCRA court declined to apply Brooks in
this case, based on the following evaluation of trial counsel’s performance.
[Trial counsel] … testified at the evidentiary
hearing about his past pre-trial, in person meetings
and relevant discussions with [Appellant]. [Trial
counsel] confirmed that he met with [Appellant] at
least two (2) times prior to trial. Similar to
[Appellant’s] testimony, [trial counsel] testified that
the primary focus of these communications included
the following: [Appellant’s] past burglary
convictions; [t]he impact of these previous
convictions at bar; [Appellant’s] decision to refrain
from testifying at trial; [p]otential trial defenses;
[Appellant’s] sentencing exposure if he were found
guilty of these charges; and [Appellant’s] choice to
not [] present any defense witnesses. [Trial
counsel] additionally described that if he elected to
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testify at trial[,] his past conviction(s) for burglary
would be admitted for impeachment purposes
against him. [Appellant] and his trial lawyer
determined from these discussions that the best
available defense and consistent with [Appellant’s]
version of the events was to attack the victim’s
credibility based on his pending, criminal drug
charges together with use of the prosecution’s
evidence as material to suggest the charged event
was something other than a burglary.
…
In his witness appearance at the collateral
hearing, [trial counsel] testified that stemming from
his pre-trial discussions with [Appellant,] he well
appreciated that [Appellant]’s contention [was] that
the Commonwealth’s trial allegations stemmed from
a drug deal gone “awry” and [that counsel] had
determined as well as communicated to [Appellant]
the trial defense would be an incorporation of the
drug deal “gone bad” assertion of [Appellant] in
combination with a vigorous attack on the victim’s
credibility, including but not limited to confronting
the victim when testifying about his then having a
possession with intent to deliver prosecution pending
against him. Wholly consistent with that which he
discussed pre-trial with [Appellant], [trial counsel]
mounted at trial such a defense.
PCRA Court Opinion, 12/4/15, at 10-11 (internal citations and footnote
omitted).
Our review reveals that the PCRA court’s findings are supported by the
record. Trial counsel testified at the PCRA hearing that he met with
Appellant on two occasions, once at the pre-trial conference and one other
time two days before trial. N.T., 7/31/15, at 57. Trial counsel testified that
their meetings consisted of discussing Appellant’s prior burglary convictions,
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and his choice not to testify for fear that those prior convictions would have
become admissible against him. Id. at 48-49. The two also discussed
Appellant’s version of events it was “a drug deal gone bad.” Id. at 49. Trial
counsel also iterated that Appellant did not give him the names of any
witness that Appellant wished to subpoena for trial. Id. at 50. They also
discussed that the victim had a pending drug prosecution at the time, which
they planned to bring up at trial as an attack on the victim’s credibility. Id.
at 49.
Turning to the trial transcript, we note that trial counsel successfully
argued motions in limine to bring up the victim’s pending drug prosecution,
and preventing the Commonwealth from introducing any prior bad acts.
N.T., 5/26/10 (Robing Room Conference) at 11-15, 17-18. During trial, trial
counsel immediately brought up the victim’s pending prosecution in his
opening statement. N.T., 5/26/10 (Trial), at 123. In addition, trial counsel
cross-examined the victim on the drug issue in this case. Id. at 167-172.
This was part of trial counsel’s lengthy cross-examination of the victim. See
generally id. at 149-173, 189-193, 199-204.
As we explained in Johnson, “[w]e … decline to read Brooks so
rigidly that we are precluded from evaluating the substantive impact of the
consultations [trial counsel] did perform.” Johnson, supra at 243. Turning
to that substantive impact, it is evident that trial counsel did mount a
defense at trial to the jury. Appellant’s brief does not suggest what
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additional things trial counsel should have done. Although Appellant’s brief
argues that he gave names of certain witnesses to trial counsel to subpoena
in his defense, trial counsel denied the allegation, and the PCRA court found
trial counsel’s testimony credible. Appellant’s Brief at 11; PCRA Court
Opinion, 12/4/15, at 24. As we have explained, the record supports the
PCRA court’s factual findings and credibility determinations. Furthermore,
consistent with Johnson, the PCRA court’s legal conclusion that Brooks
does not necessitate granting Appellant relief is correct. Therefore, both of
Appellant’s issues on appeal fail.
Based on the foregoing, we conclude the PCRA court properly denied
Appellant’s PCRA petition. See Fears, supra. Accordingly, the PCRA
court’s August 12, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
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