Com. v. Brown, J.

J-S20044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE M. BROWN :
:
Appellant : No. 1229 EDA 2014

Appeal from the PCRA Order March 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1301955-2006

BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED September 5, 2017

Jesse M. Brown appeals from the order entered in the Philadelphia

County Court of Common Pleas, dated March 21, 2014, dismissing his first

petition filed under the Post-Conviction Relief Act (“PCRA”).1 Brown seeks

relief from the judgment of sentence of an aggregate term of life

imprisonment, imposed on April 21, 2008, following his jury convictions of

first-degree murder, a firearms violation, and possessing an instrument of

crime (“PIC”).2 On appeal, he raises claims asserting the ineffective

assistance of trial counsel. For the reasons below, we affirm.

The PCRA court summarized the factual history as follows:
____________________________________________

1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 2502, 6106, and 907, respectively.
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On May 13, 2006 the victim in this matter, Tariq Blackwell,
was shot and killed by [Brown] on Porter Street in Philadelphia,
Pennsylvania. At [Brown]’s trial the victim’s girlfriend, Jerrica
Fulton, testified that she had been on Porter Street with the
victim before the shooting occurred. The witness testified that
on the morning of May 13, 2006[,] Tariq Blackwell and [Brown]
began to argue when they saw each other on Porter Street. At
trial, defense counsel claimed that this argument was the result
of [Brown] pursuing the victim’s girlfriend, Jerrica Fulton, the
night before this incident took place.1 Jerrica Fulton did testify
that on May 12, 2006 [Brown] approached her as she was sitting
in front of her house and [Brown] was riding by on his bike. ...
[Brown] got off his bike and handed her a piece of paper which
stated his name, “Jay” with his phone number and said, “call
anytime.” However, Jerrica Fulton also testified that [Brown]
wanted her to give the paper to her mother and that she never
informed Tariq Blackwell of the piece of paper [Brown] handed to
her.2
__________________
1
Defense counsel confronted the witness on the stand
with notes of testimony from a preliminary hearing that
took place on November 8, 2006. In the notes, Jerrica
Fulton had testified that the argument between [Brown]
and the deceased was over her “boyfriend being jealous.”
However, at this trial Jerrica Fulton testified that she did
not remember making that statement.
2
Jerrica Fult[o]n’s best friend, Shanique Hawkins, also
testified at this trial. Shanique Hawkins testified that she
was present on May 12, 2006 when [Brown] gave the
piece of paper with his phone number on it to Jerrica
Fulton. Shanique Hawkins was not able to hear the words
exchanged between [Brown] and Ms. Fulton but did
witness the exchange between the two individuals. Also,
Ms. Hawkins was present at the argument that took place
later that evening between [Brown] and Tariq Blackwell,
where she heard [Brown] yell “it ain’t over with” as she,
Tariq Blackwell and Jerrica walked away.
__________________

Later that evening, Tariq Blackwell, Jerrica Fulton and
Shanique Hawkins were standing in front of a store on 7th and
Ritner Street[s]. [Brown] was also standing in front of the store
with another individual. Jerrica Fulton testified that Tariq

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Blackwell went up to the individual that was with [Brown]
because they knew each other. Shortly after, a verbal argument
ensued between [Brown] and Tariq Blackwell. Jerrica Fulton and
Shanique Hawkins told Tariq Blackwell to walk away from the
argument and he did. However, [Brown] continued arguing as
the individuals walked away. Shanique Hawkins testitifed that
[Brown] yelled “it ain’t over with” as they turned the corner to
return to her home for the evening.

The next day on May 13, 2006 at approximately 10:00
a.m. Jerrica Fulton and Tariq Blackwell walked towards Porter
Street to go to the store. Jerrica Fulton testified that as they
approached the corner of Marshall and Porter Street[s] she could
see [Brown], his friend Terry and an unidentified female standing
on the other side. Immediately, [Brown] and Tariq Blackwell
began to exchange words. Tishea Green, an eyewitness to the
shooting confirmed that she also witnessed [Brown] and Tariq
Blackwell get into a verbal argument. Tishea Green was on her
way to work and walking on Porter Street when she witnessed
the verbal argument and saw the deceased approach [Brown]
and say, “I heard you were looking at my girlfriend in a type of
way that you weren’t supposed to. You said something to her.”
Then, Tishea Green testified that she saw the deceased punch
[Brown] in his face. After [Brown] was punched in the face the
two began to wrestle and held each other in a bear hug. Jerrica
Fulton testified less than five seconds after she saw [Brown] pull
out a gun, but did not see him fire it because she fell to the
floor. Both witnesses testified that they heard several gunshots,
but neither saw [Brown] shoot Tariq Blackwell.

Police Officer Michael Duffy testified at this trial and stated
that when he arrived at the scene of the shooting at
approximately 12:30 p.m., he observed “a black male lying in
the middle of the highway who appeared to be shot.” Officer
Duffy went to Jefferson Hospital where Tariq Blackwell was
pronounced dead. In the hospital Officer Duffy was approached
by Jerrica Fulton and was given the piece of paper with
[Brown]’s name and phone number on it. Officer Duffy testified
that he was able to ask Jerrica Fulton a few questions to
ascertain who the shooter was in this incident. Jerrica Fulton
told Officer Duffy [Brown] had shot Tariq Blackwell, about the
incident as she had witnessed it and how the argument started.

PCRA Court Opinion, 7/22/2014, at unnumbered 1-4.

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Brown was subsequently arrested and charged with one count each of

murder, carrying a firearm without a license, and PIC. On April 21, 2008, a

jury found Brown guilty of all charges, including murder in the first degree.

The trial court immediately sentenced him to a term of life imprisonment for

murder, and a concurrent term of three to six years’ imprisonment for the

firearms violation.3 A panel of this Court affirmed Brown’s judgment of

sentence on September 16, 2009, and the Pennsylvania Supreme Court

subsequently denied his petition for review. See Commonwealth v.

Brown, 986 A.2d 1249 (Pa. Super. 2009) (unpublished memorandum),

appeal denied, 998 A.2d 958 (Pa. 2010).

On August 19, 2010, Brown filed a timely, pro se PCRA petition,

followed by an amended petition on December 28, 2010. Counsel was

appointed on May 6, 2011, and filed four additional amended petitions on

September 9, 2011, June 22, 2012, October 19, 2012, and March 15, 2013,

respectively. All of Brown’s petitions asserted allegations of trial counsel’s

ineffectiveness. On November 21, 2013, counsel filed a supplement to his

fourth amended petition, which included affidavits from three proposed

witnesses. On January 24, 2014, the PCRA court issued notice of its intent

to dismiss Brown’s petition without first conducting an evidentiary hearing

pursuant to Pa.R.Crim.P. 907. Brown filed a pro se response on February 5,

____________________________________________

3
No further penalty was imposed for the PIC conviction.

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2014, followed by a motion for an evidentiary hearing on March 6, 2014.

Thereafter, on March 21, 2014, the PCRA court dismissed Brown’s petition.

This timely appeal followed.4
____________________________________________

4
On April 24, 2014, the PCRA court ordered Brown to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting an extension of time until the relevant transcripts were
transcribed, counsel filed a concise statement on June 2, 2014. The PCRA
court subsequently filed an opinion on July 22, 2014.

The ensuing two-year delay in the disposition of this appeal resulted
from the following. On June 12, 2014, the appeal was dismissed by this
Court when Brown failed to file a docketing statement. However, the appeal
was reinstated on July 9, 2014, after Brown filed a motion for
reconsideration. Thereafter, on July 28, 2014, Brown filed a pro se motion
requesting permission for counsel to withdraw so that he could proceed pro
se. On August 27, 2014, this Court entered a per curiam order remanding
the case to the PCRA court to conduct a Grazier hearing. See
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Thereafter, the PCRA
court conducted a Grazier hearing on October 24, 2014, at which time
Brown decided not to represent himself pro se.

A revised briefing schedule was established by this Court, and counsel
failed to timely file a brief on Brown’s behalf. Accordingly, on August 19,
2015, this Court, once again, remanded the appeal to the PCRA court to
determine whether PCRA counsel had abandoned Brown on appeal. See
Order, 8/19/2015. Meanwhile, counsel filed a supplemental Rule 1925(b)
statement on September 16, 2015. On March 14, 2016, this Court entered a
per curiam order stating the PCRA court failed to comply with our August 19,
2015, order, and directing the PCRA court to file a response within seven
days. See Order, 3/14/2016. The PCRA court did so, and filed a
supplemental opinion on March 21, 2016. Thereafter, a revised briefing
scheduled was established.

However, on April 18, 2016, Brown filed a second request for a
Grazier hearing. This Court denied the request on May 2, 2016.
Subsequently, on June 24, 2016, when PCRA counsel again failed to comply
with the briefing schedule, this Court remanded the appeal again to the
PCRA court to determine whether counsel abandoned Brown. See Order,
(Footnote Continued Next Page)

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“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. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). A PCRA court may dismiss a

petition “without an evidentiary hearing if there are no genuine issues of

material fact and the petitioner is not entitled to relief.” Id. at 1284.

(citations omitted).

Where, as here, all of the claims on appeal assert trial counsel’s

ineffectiveness, we must bear in mind:

“In order to obtain relief under the PCRA premised upon a
claim that counsel was ineffective, a petitioner must establish
beyond a preponderance of the evidence that counsel’s
ineffectiveness ‘so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have
taken place.’” Commonwealth v. Payne, 794 A.2d 902, 905
(Pa. Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
considering such a claim, courts presume that counsel was
effective, and place upon the appellant the burden of proving
otherwise. Id. at 906. “Counsel cannot be found ineffective for
failure to assert a baseless claim.” Id.

To succeed on a claim that counsel was ineffective,
Appellant must demonstrate that: (1) the claim is of arguable
merit; (2) counsel had no reasonable strategic basis for his or
her action or inaction; and (3) counsel’s ineffectiveness

_______________________
(Footnote Continued)

6/24/2016. On July 25, 2016, Brown filed an application in this Court for
the appointment of new PCRA counsel. This Court denied the application
based upon its June 24, 2016, remand to the PCRA court. Thereafter, on
August 15, 2016, the PCRA court responded to this Court’s remand order,
and stated PCRA counsel had not abandoned Brown. Counsel subsequently
filed an appellate brief on November 7, 2016.

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prejudiced him. Commonwealth v. Allen, 833 A.2d 800, 802
(Pa. Super. 2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013). “To

demonstrate prejudice, a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.” Commonwealth v. Mason, 130

A.3d 601, 618 (Pa. 2015).

Brown first argues counsel was ineffective for failing to call character

witnesses who would have attested to his reputation for non-violence. See

Brown’s Brief at 5. Although Brown names only one proposed witness in his

brief (Diro Fields), counsel forwarded to the PCRA court affidavits from three

proposed witnesses – Diro Fields, Ashley Reed (Brown’s sister), and Dorothy

Brown (Brown’s mother) – who all stated they were known to trial counsel,5

and available to testify at Brown’s jury trial regarding Brown’s good

reputation for non-violence. See Affidavits, filed 11/21/2013. Accordingly,

Brown contends trial counsel was ineffective for failing to call these

witnesses.

Our review of a challenge to counsel’s stewardship for failing to

present character witnesses is well-settled:

____________________________________________

5
Specifically, the witnesses averred they were “named in the jury selection
transcript.” See Affidavits of Ashley Reed, Dior Fields, and Dorothy Brown,
filed 11/21/2013. Our review of the transcript from Brown’s voir dire
supports this claim. See also N.T., 4/15/2008 at 15; 4/16/2008 at 16.

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The failure to call character witnesses does not constitute per se
ineffectiveness. In establishing whether defense counsel was
ineffective for failing to call witnesses, appellant must prove:

(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should
have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial
as to have denied the defendant a fair trial.

Commonwealth v. Treiber, 121 A.3d 435, 463-464 (Pa. Super. 2015)

(quotations omitted).

Although the affidavits submitted by Brown’s proposed witnesses

appear to minimally satisfy his burden of proving the availability and

willingness of the witnesses to testify to his good character, we conclude

Brown is nevertheless entitled to no relief. Indeed, Brown fails to explain

how the absence of these witnesses’ testimony was so prejudicial that he

was denied a fair trial. See id. His string citation to several cases, which

state character evidence alone can create reasonable doubt, is simply

insufficient to establish prejudice under the facts of his case. See Brown’s

Brief at 5.6

Moreover, the PCRA court also explained Brown “stated that trial

counsel was ineffective because [counsel’s] reason for not calling [these]

character witness[es] was due to a prior drug conviction.” PCRA Court

____________________________________________

6
We emphasize Brown’s “argument” on this issue consists of one, half-page,
paragraph. See Brown’s Brief at 5.

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Opinion, 7/22/2014, at unnumbered 6. Brown appears to confirm this in his

brief, but maintains counsel’s asserted basis for failing to present character

testimony is flawed because “drug convictions are not relevant to character

testimony for peacefulness and non-violence.” Brown’s Brief at 5.

The Pennsylvania Supreme Court has held:
While character witnesses may not be impeached with specific
acts of misconduct, a character witness may be cross-examined
regarding his or her knowledge of particular acts of misconduct
to test the accuracy of the testimony.

Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (citation

omitted). In Commonwealth v. Jones, 636 A.2d 1184 (Pa. Super. 1994),

appeal denied, 668 A.2d 1125 (Pa. 1995), a panel of this Court determined

trial counsel had a reasonable basis for failing to present character witnesses

who were aware of the defendant’s prior drug activity. The panel opined:

[I]n the instant case, counsel may well have concluded that
potential cross-examination of appellant’s character witnesses
regarding the drug activity in which appellant was engaged
offered dangers which outweighed the doubtful value of their
testimony regarding appellant’s alleged reputation for non-
violence.

Id. at 1190. The same is true here.7 Consequently, Brown is entitled to no

relief on this claim.

____________________________________________

7
We note that in Jones, supra, the ineffectiveness claim was raised via
post-trial motions, and the court had conducted a hearing on the defendant’s
motions. See Jones, supra, 636 A.2d at 1189. Nevertheless, at the
hearing, counsel was unable “to recall the specific basis for” failing to
present character witnesses. Id. While no hearing was conducted in the
present case, Brown does not dispute that his prior drug conviction was one
(Footnote Continued Next Page)

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Next, Brown claims trial counsel was ineffective for failing to object

when the public, specifically his sister Ashley Reed, was excluded from the

courtroom during his jury voir dire. Brown argues the court’s actions

constituted a structural violation of his Sixth Amendment right to a public

trial. Brown’s Brief at 5.

The Sixth Amendment to the Constitution provides, in relevant part,

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial[.]” U.S. CONST., Amend. VI. The United States Supreme

Court has held that a defendant’s right to a public trial extends to the voir

dire of prospective jurors. Presley v. Georgia, 558 U.S. 209 (2010).

We conclude Brown is entitled to no relief. First, his proof of this

constitutional violation is lacking. The affidavit signed by Brown’s sister

states the following: “I was [] peacefully attending the first trial when court

officials made me and other family members leave the courtroom without

authority to do so.” Affidavit of Ashley Reed, filed 11/21/2013. Reed did

not specify she was excluded during Brown’s voir dire, and, in fact, the PCRA

court stated in its opinion that it had reviewed the record in this matter and

found “no evidence that this exclusion occurred.” PCRA Court Opinion,

7/22/2014, at unnumbered 7. Our independent review of the transcript
_______________________
(Footnote Continued)

of the reasons why trial counsel chose not to present character evidence.
See Brown’s Brief at 2; Statement of Errors Complained of on Appeal,
6/2/2014, at 1; Fourth Amended Petition for Post-Conviction Relief,
3/15/2013, at 1.

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from the two-day voir dire supports the court’s finding. Furthermore, Brown

provides no citation to the notes of testimony in his brief.

Moreover, even assuming, arguendo, we were to find the trial court

improperly excluded Reed from voir dire, Brown has made no attempt to

establish he was prejudiced as a result of the court’s actions. As our

Supreme Court explained:

[V]arious courts have found a violation of the right to a public
trial to be in the nature of a structural error. See, e.g., Owens
v. United States, 483 F.3d 48, 63 (1st Cir. 2007). It is well
recognized, however, that such violation is a particular type of
structural error which is waivable. See, e.g., Peretz v. United
States, 501 U.S. 923, 936, 111 S.Ct. 2661, 2666, 115 L.Ed.2d
808 (1991) (citing Levine v. United States, 362 U.S. 610, 619,
80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960), for the proposition
that “failure to object to closing of courtroom is [a] waiver of
[the] right to [a] public trial”). Since Appellant did not object to
the [exclusion of the public], the only cognizable aspect of his
claim is that of deficient stewardship, as to which he must
establish prejudice.

Commonwealth v. Rega, 70 A.3d 777, 786-787 (Pa. 2013) (some citations

and footnote omitted). Here, Brown has utterly failed to demonstrate he

was prejudiced by the purported exclusion of his sister from voir dire.

Therefore, this issue is meritless.

Brown raises three additional claims of trial counsel’s ineffectiveness,

namely for: (1) failing to assert Brown’s innocence and argue self-defense;

(2) presenting a diminished capacity defense without Brown’s consent; and

(3) failing “to pursue sufficiently prior inconsistent statements of Tishea

Green and to challenge Shanique Hawkin’s statement to police.” Brown’s

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Brief at 6. However, these issues were not included in Brown’s June 2014

Rule 1925(b) concise statement, Rather, Brown raised these claims for the

first time in the supplemental statement he filed on September 16, 2015,

after this Court remanded the appeal to the PCRA court to determine if

counsel had abandoned Brown. See supra n.3. See also Order,

8/19/2015.

It is axiomatic that “in order to preserve their claims for appellate

review, [a]ppellants must comply whenever the [PCRA] court orders them to

file a Statement of Matters Complained of on Appeal pursuant to

Pa.R.A.P.1925” and “[a]ny issues not raised in a Pa.R.A.P.1925(b) statement

will be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780

(Pa. 2005), quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998). Moreover, Rule 1925 provides for the filing of a supplemental

concise statement only “upon application” of the trial court and “for good

cause shown.” Pa.R.A.P. 1925(b)(2). Indeed, this Court has explicitly

stated an appellant must seek the trial court’s permission before filing a

supplemental statement. See Commonwealth v. Ray, 134 A.3d 1109,

1115 (Pa. Super. 2016) (pro se defendant’s untimely concise statement filed

after trial court’s opinion did not preserve issues for review when he “failed

to file a corresponding motion seeking permission to supplement his

previously-filed Notice [of issues on appeal] by filing a Pa.R.A.P. 1925(b)

statement nunc pro tunc.”).

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Here, the PCRA court noted in its opinion that Brown failed to seek its

permission to file the September 16, 2015, supplemental statement. The

court explained: “While this matter was remanded by the Superior Court for

a determination of counsel’s involvement, it was not an invitation to amend

the [Rule] 1925(b) statement that was ordered by this Court to be filed no

later than May 15, 2014.” PCRA Court Opinion, 3/21/2016, at 5.

Consequently, the PCRA court concluded Brown’s last three issues were

waived.

We are constrained to agree. When the case was remanded by this

Court in August of 2015, counsel did not request permission from the PCRA

court to file a supplemental concise statement. Rather, it appears counsel

informed the PCRA court by email that Brown wanted counsel to continue to

represent him, and wanted him to amend the concise statement. See

Response to Order, 3/18/2016, email from counsel dated 9/14/2015. The

email, however, was not a request of the PCRA court for permission to file a

supplemental statement.8 Therefore, Brown’s additional claims are waived

on appeal.

Nevertheless, we note the PCRA court addressed these additional

claims in its opinion, and concluded they were meritless. See PCRA Court

Opinion, 3/21/2016, at 6-9. Were we to review these issues on appeal, we

____________________________________________

8
Moreover, counsel’s email does not allege any “good cause” for doing so.
See Pa.R.A.P. 1925(b)(2).

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would agree. With respect to Brown’s contention that counsel was

ineffective for failing to assert Brown’s innocence and present a self-defense

argument, the PCRA court concluded the evidence against Brown was

“overwhelming[,]” noting Brown “faced evidence which included testimony

by three eyewitnesses, a photo found on his phone of him [] brandishing a

matching gun, and testimony that [Brown] had spent months under an

assumed identity.” PCRA Court Opinion, 3/21/2016, at 8. Accordingly, the

PCRA court concluded “trial counsel’s decision to argue for a voluntary

manslaughter conviction [was] reasonable in light of the overwhelming

evidence against [Brown].” Id. Furthermore, we note Brown fails to explain

what evidence would have supported a claim of self-defense. See Brown’s

Brief at 6. Therefore, we would find this claim fails.

Next, with respect to Brown’s assertion that trial counsel presented a

diminished capacity defense without his permission, the PCRA court found

“no evidence in the record that a diminished capacity defense was

presented.” PCRA Court Opinion, 3/21/2016, at 7. Brown again fails to

direct this Court to the evidence in the record supporting such a defense.

See Brown’s Brief at 6. Again, we would conclude warrants no relief.

Lastly, with respect to Brown’s assertion that counsel was ineffective

for failing to challenge the statements of Tishea Green and Shanique

Hawkins, we note Brown failed to raise the issue of Green’s prior

inconsistent statement in either his original, or untimely supplemental

concise statement. Moreover, with regard to Hawkins’s statement, Brown

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fails to explain in his brief how counsel should have challenged her

statement. See Brown’s Brief at 6. Accordingly, were we to address these

final three claims, we would agree with the PCRA court that no relief is

warranted.

Therefore, because we find no error or abuse of discretion on the part

of the PCRA court in dismissing Brown’s petition, we affirm the order on

appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/5/2017

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