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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEREMY BROWN :
:
Appellant : No. 2210 EDA 2017
Appeal from the PCRA Order June 1, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003340-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 25, 2018
Appellant, Jeremy Brown, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We
affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
After a joint bench trial with a co-defendant on September 3, 2014, the court
convicted Appellant of aggravated assault, conspiracy to commit aggravated
assault, conspiracy to commit robbery, firearms not to be carried without a
license, possession of a firearm prohibited, and carrying firearms in public in
Philadelphia. The court imposed an aggregate sentence of 7 to 14 years’
incarceration on November 6, 2014. On January 13, 2016, this Court
affirmed; our Supreme Court denied allowance of appeal on June 8, 2016.
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On November 17, 2016, Appellant timely filed his first pro se PCRA
petition. The PCRA court appointed PCRA counsel on December 13, 2016, and
PCRA counsel filed a motion to withdraw as counsel on February 7, 2017. The
PCRA court granted counsel’s motion to withdraw on March 1, 2017, and
appointed new PCRA counsel. On April 23, 2017, new PCRA counsel filed a
Turner/Finley1 letter and a request to withdraw as counsel. On April 24,
2017, the PCRA court issued notice of its intent to dismiss the petition without
a hearing, per Pa.R.Crim.P. 907. The PCRA court dismissed Appellant’s PCRA
petition on June 1, 2017, and permitted new PCRA counsel to withdraw.
Appellant timely filed a pro se notice of appeal and request for appellate
counsel on June 26, 2017. The PCRA court appointed appellate counsel on
July 20, 2017, and ordered Appellant on September 27, 2017, to file a concise
statement of errors complained of on appeal, per PA.R.A.P. 1925(b). On
October 9, 2017, appellate counsel filed a Rule 1925(c)(4) statement.
Appellate counsel filed with this Court a petition to withdraw representation
and a brief, designated as a brief under Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on January 9, 2018.
Before counsel can withdraw representation under the PCRA, the law
requires counsel to satisfy the mandates of Turner/Finley. Commonwealth
v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).
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1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (1988).
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…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.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).
Withdrawal as counsel in this context also includes certain notice
requirements: Counsel must contemporaneously serve on Appellant copies of
the “no-merit” letter or brief, the petition to withdraw, and a letter with a
statement advising Appellant that he has the immediate right to file a brief in
this Court pro se or with new privately-retained counsel within 30 days.
Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016). To withdraw,
counsel must assure this Court of counsel’s compliance with these technical
requirements. Id.
Instantly, counsel submitted a Turner/Finley brief on appeal (even
though counsel designated it as an Anders brief) and a petition to withdraw
as counsel.2 Both the brief and counsel’s petition to withdraw demonstrate he
has made a conscientious examination of the record in this case and
____________________________________________
2 In the context of a PCRA petition and request to withdraw, the appropriate
filing is a “no-merit” letter/brief. See Turner, supra; Finley, supra. But
see Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior
Court can accept Anders brief in lieu of Turner/Finley letter, where PCRA
counsel seeks to withdraw on PCRA appeal). Instantly, counsel incorrectly
designated the brief filed on appeal as an Anders brief. Although it has some
attributes of an Anders brief, we will treat it as a Turner/Finley brief.
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determined the appeal is totally frivolous. Counsel notified Appellant of
counsel’s request to withdraw, advised Appellant of his right to retain new
counsel and/or raise any points he might deem worthy of consideration, and
furnished Appellant with a copy of the petition and the brief prepared for this
appeal. Thus, counsel has substantially complied with the Turner/Finley
requirements, notwithstanding the designation on the appellate brief. See
Karanicolas, supra. Accordingly, we proceed with our independent
assessment. See Turner, supra at 494-95, 544 A.2d at 928-29 (stating
appellate court must conduct independent analysis and agree with counsel
that appeal is frivolous). Appellant has not responded to counsel’s petition.
Appellant raises one issue in the Turner/Finley brief:
DID THE PCRA COURT ERR WHEN IT DISMISSED
[APPELLANT]’S PCRA PETITION WITHOUT A HEARING AS
NOT RAISING A MERITORIOUS CLAIM UNDER THE PCRA?
(Turner/Finley Brief at 5).
Appellant argues trial counsel was ineffective for several reasons. First,
Appellant alleges trial counsel failed to preserve claims challenging the weight
of the evidence and caused them to be waived on direct appeal. Second,
Appellant contends trial counsel failed to object to the use of his co-
defendant’s out-of-court statement during the joint trial. Finally, Appellant
generally asserts trial counsel failed to raise claims of “governmental
obstruction” and “prosecutorial misconduct.” Appellant concludes he might
be entitled to some PCRA relief. We disagree.
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Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74
(2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Further, a
petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA
court can decline to hold a hearing if there is no genuine issue concerning any
material fact, the petitioner is not entitled to PCRA relief, and no purpose
would be served by any further proceedings. Commonwealth v. Wah, 42
A.3d 335 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and, (3) but for
the errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
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of the test for ineffectiveness will cause the claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
[appellant] alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
The following principles apply to a weight of the evidence claim:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
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witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
“Under the Confrontation Clause of the Sixth Amendment, a criminal
defendant has a right to confront witnesses against him.” Commonwealth
v. Rivera, 565 Pa. 289, 299, 773 A.2d 131, 137 (2001), cert. denied, 535
U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002). A defendant is deprived
of his rights under the Sixth Amendment when his non-testifying co-
defendant’s facially incriminating confession is introduced at their joint trial,
even if the jury is instructed that the confession is to be considered only
against the confessing co-defendant. Id. Nevertheless, “[i]f a confession can
be edited so that it retains its narrative integrity and yet in no way refers to
[the non-confessing] defendant, then use of it does not violate the principles
of Bruton [v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)].”
Commonwealth v. Travers, 564 Pa. 362, 368, 768 A.2d 845, 848 (2001)
(quoting Commonwealth v. Johnson, 474 Pa. 410, 412, 378 A.2d 859, 860
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(1977)). In Travers, our Supreme Court held that the redaction of a non-
testifying co-defendant’s confession in a joint trial, which replaces any direct
reference to the non-confessing co-defendant with a neutral pronoun, when
accompanied by an appropriate cautionary charge, sufficiently protects the
non-confessing defendant’s Sixth Amendment rights.3 Id. at 372-73, 768
A.2d at 851.
Our standard of review for a claim of prosecutorial misconduct is limited
to “whether the trial court abused its discretion.” Commonwealth v.
DeJesus, 567 Pa. 415, 438, 787 A.2d 394, 407 (2001), cert. denied, 537 U.S.
1028, 123 S.Ct. 580, 154 L.Ed.2d 441 (2002).
In considering this claim, our attention is focused on
whether the defendant was deprived of a fair trial, not a
perfect one.
Not every unwise remark on a prosecutor’s part constitutes
reversible error. Indeed, the test is a relatively stringent
one. Generally speaking, a prosecutor’s comments do not
constitute reversible error unless the unavoidable effect of
such comments would be to prejudice the jury, forming in
their minds fixed bias and hostility toward [Appellant] so
that they could not weigh the evidence objectively and
render a true verdict. Prosecutorial misconduct, however,
will not be found where comments were based on evidence
or proper inferences therefrom or were only oratorical flair.
In order to evaluate whether comments were improper, we
must look to the context in which they were made. Finally,
when a trial court finds that a prosecutor’s comments were
inappropriate, they may be appropriately cured by a
cautionary instruction to the jury.
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3 In Travers, the direct references to the non-confessing co-defendant
contained in his co-defendant’s confession were replaced with the words “the
other man.”
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Id. at 438, 787 A.2d at 407-08 (internal citations omitted). “In considering
[an] appellant’s claims of prosecutorial misconduct, we note that a
prosecutor’s comments do not constitute evidence.” Commonwealth v.
Baez, 554 Pa. 66, 103, 720 A.2d 711, 729 (1998), cert. denied, 528 U.S. 827,
120 S.Ct. 78, 145 L.Ed.2d 66 (1999).
Instantly, the court convicted Appellant of the enumerated offenses,
following a bench trial. With respect to Appellant’s challenge to the weight of
the evidence, and trial counsel’s failure to preserve it in a post-sentence
motion, the court said:
Appellant next claims that he is entitled to a new trial on the
allegation that the verdict was against the weight of the
evidence. This claim is doubly-waived and without merit.
Appellant raises the instant claim for the first time on
appeal, in contravention of Pennsylvania Rule of Criminal
Procedure 607, which provides that weight of the evidence
claims shall be raised with the trial judge via written or oral
(on-record) motion any time before sentencing, or in a post-
sentence motion. The purpose of this rule is to make it clear
that a challenge to the weight of the evidence must be
raised with the trial judge or it will be waived.
Here, Appellant failed to preserve this claim via either
written or oral motion prior to sentencing, or post-sentence
motion—let alone present his claim in any fashion to this
[c]ourt prior to the instant appeal. As such, Appellant’s
claim is waived.
Moreover, Appellant’s claim additionally is waived pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b).
Appellant merely asserts that the verdict was based only on
speculation, conjecture and surmise. This claim is utterly
vague and incapable of meaningful evaluation.
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Pennsylvania Rule of Appellate Procedure 1925(b)(4)
(Requirements; waiver) specifically mandates that
statements of matters complained of on appeal shall
concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all
pertinent issues for the judge.
When the trial court has to guess what issues an
appellant is appealing, that is not enough for
meaningful review. When an appellant fails
adequately to identify in a concise manner the issues
sought to be pursued on appeal, the trial court is
impeded in its preparation of a legal analysis which is
pertinent to those issues. In other words, a Concise
Statement which is too vague to allow the court to
identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.
Thus Appellant’s claim—which is woefully vague—is
incapable of meaningful review and should be deemed
waived.
Even if these fatal deficiencies somehow were overlooked,
Appellant’s weight claim would be unavailing. A challenge
to the weight of the evidence is addressed to the discretion
of the trial court. It is within the exclusive province of the
trier of fact to assess issues of credibility and accord weight
to testimony. The trial court, sitting as fact finder, is free to
accept all, part, or none of a witness’s testimony. A new
trial should not be granted due to a mere conflict in
testimony. Additionally, the evidence at trial need not
preclude every possibility of innocence, and the fact-finder
is free to resolve any doubts regarding a defendant’s guilt
unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. Stated another way, a court may
award a new trial because the verdict is against the weight
of the evidence only when the verdict rendered is so
contrary to the evidence as to shock one’s sense of justice
and the award of a new trial is imperative so that right may
be given another opportunity to prevail.
In this case, this [c]ourt found the testimony of Mr. Flowers
and Ms. Lyles (both of whom positively identified Appellant
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as one of the assailants) to be patently credible. While Ms.
Lyles “cooled” her testimony somewhat at trial—i.e., she
claimed that she did not see the gun—she unequivocally
testified to hearing a gunshot, and Mr. Flowers had the
bullet wound to prove it. Accordingly, even if Appellant had
properly preserved this claim, he would be due no relief.
(Trial Court Opinion on direct appeal, filed July 2, 2015, at 12-14) (internal
citations and quotation marks omitted). We see no abuse of discretion in the
trial court’s assessment of Appellant’s weight of the evidence claim. See
Champney, supra (explaining weight of evidence is exclusively for finder of
fact who is free to believe all, part, or none of evidence and to determine
credibility of witnesses; this Court cannot substitute its judgment for that of
fact-finder and may reverse verdict only if it is so contrary to evidence as to
shock one’s sense of justice). Consequently, Appellant’s challenge to the
weight of the evidence lacks merit, and counsel cannot be considered
ineffective for failing to preserve it. See Pierce, supra; Poplawski, supra.
With respect to Appellant’s Bruton claim based on the admission of his
co-defendant’s statement, any “possible” reference to Appellant was fully
redacted. The redacted statement retained its narrative integrity but did not
refer in any way to Appellant. Therefore, the use of the co-defendant’s
statement did not violate the principles of Bruton. See Travers, supra.
Moreover, the concerns for jury taint in this context are not necessarily
present in a bench trial, which is what we have here. See Commonwealth
v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016), appeal denied, 636 Pa.
673, 145 A.3d 724 (2016) (citing Commonwealth v. Smith, 97 A.3d 782,
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788 (Pa.Super. 2014) (reiterating general rule that trial court, sitting as trier
of fact, “is presumed to know the law, ignore prejudicial statements, and
disregard inadmissible evidence”)). Thus, we conclude Appellant’s Bruton
claim lacks arguable merit, and counsel cannot be deemed ineffective for
failing to object to the statement on this basis.
With respect to Appellant’s vague complaints of “prosecutorial
misconduct” and “governmental obstruction,” Appellant does not indicate
what additional claims counsel failed to preserve at trial or on appeal. Further,
we have located nothing in the certified record to support relief in this regard.
See DeJesus, supra. Based upon the foregoing, Appellant’s claims regarding
trial counsel’s ineffectiveness on this basis merit no relief. Following our
independent review of the record, we agree with counsel that the appeal is
frivolous. Accordingly, we affirm and grant counsel’s petition to withdraw.
Order affirmed. Counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/18
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