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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RASHEEN BROWN, : No. 1372 EDA 2017
:
Appellant :
Appeal from the PCRA Order, May 16, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011871-2010
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2019
Rasheen Brown appeals from the May 16, 2017 order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The relevant facts and procedural history of this case, as summarized
by a prior panel of this court on direct appeal, are as follows:
In September of 2011, a jury convicted [a]ppellant of
[indecent assault of a person less than 13 years of age
and endangering the welfare of children1] based on
evidence that he sexually abused his 11-year-old
stepdaughter [(hereinafter, “victim”)]. Appellant was
initially sentenced to 6 to 14 months’ incarceration,
but the court later granted his motion for
reconsideration and resentenced him to a term of
time-served to 23 months’ incarceration (with
immediate parole to house arrest), followed by
1 18 Pa.C.S.A. §§ 3126(a)(7) and 4304(a), respectively.
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5 years’ probation[, on April 30, 2012.2] Appellant did
not file a direct appeal.
However, [a]ppellant subsequently filed a [PCRA
petition], seeking the reinstatement of his direct
appeal rights. The PCRA court granted that petition
and [a]ppellant filed a timely notice of appeal nunc
pro tunc. On September 6, 2013, the [PCRA] court
issued an order directing [a]ppellant to file a
Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant filed an untimely
Rule 1925(b) statement on September 30,
2013.[Footnote 1]
[Footnote 1] Because the trial court
issued a Rule 1925(a) opinion adequately
addressing the issue raised by [a]ppellant
herein, the untimeliness of [a]ppellant’s
concise statement does not necessitate
remand under Rule 1925(c)(3). See
Pa.R.A.P. 1925(c)(3) (“If an appellant in a
criminal case was ordered to file a
Statement and failed to do so, such that
the appellate court is convinced that
counsel has been per se ineffective, the
appellate court shall remand for the filing
of a Statement nunc pro tunc and for the
preparation and filing of an opinion by the
judge.”); Commonwealth v. Burton,
2 Specifically, the trial court’s April 30, 2012 order states as follows:
AND NOW, to wit, this 30th day of April, 2012, [it] is
hereby ORDERED AND DECREED that [appellant] is
sentenced as follows: Time in to twenty[-]three
months, [appellant] is to be released from custody at
ASD immediately, he is to have immediate parole.
Upon release [appellant] is directed to House Arrest
and he will be provided with an electronic monitor. To
be followed by five (5) years[’] reporting probation.
[Appellant] is permitted to go to Medical
Appointments as needed and religious services only.
Trial court order, 4/30/12.
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973 A.2d 428, 433 (Pa.Super. 2009)
(holding that despite the mandate of
Rule 1925(c)(3), “if there has been an
untimely filing [of a Rule 1925(b)
statement], this Court may decide the
appeal on the merits if the trial court had
adequate opportunity to prepare a
decision addressing the issues being
raised on appeal”).
Commonwealth v. Brown, No. 2404 EDA 2013, unpublished memorandum
at 1-2 (Pa.Super. filed December 31, 2014).
On December 31, 2014, a panel of this court affirmed appellant’s
judgment of sentence, and appellant did not seek allowance of appeal with
our supreme court. Id. On September 21, 2015, appellant filed a timely
PCRA petition alleging that his trial counsel3 was ineffective for failing to object
to the trial court’s jury instruction on indecent assault of a person less than
13 years of age. (See PCRA petition, 9/21/15 at 2, 4-5.)4 The Commonwealth
filed an answer to appellant’s PCRA petition on May 12, 2016. Appellant, in
turn, filed a supplemental PCRA petition on November 29, 2016. Thereafter,
on March 16, 2017, the PCRA court provided appellant with notice, pursuant
to Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a
hearing. Appellant subsequently filed a notice of appeal on April 24, 2017.
On May 16, 2017, the PCRA court dismissed appellant’s petition without a
3 Appellant was represented at trial by Andres Jalon, Esq.
4 Appellant’s PCRA petition does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.
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hearing. Although not ordered to do so, appellant filed a concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b) on August
3, 2017. On March 29, 2018, this court was notified that the Honorable Earl
Trent is no longer sitting on the bench and that no opinion will be
forthcoming.5, 6
Appellant raises the following issue for our review:
Did trial counsel’s failure to object and request a
correction to the trial court’s incomplete and incorrect
charge as to count four of docket CP-51-CR-0011871-
2013, Indecent Assault of a Person Less than Thirteen
Years of Age, 18 Pa.C.S.A. § 3126(a)(7), constitute
ineffective assistance of counsel; and, if so, should the
judgment of sentence as to that charge be vacated?
Appellant’s brief at 3.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
5 Appellant’s appeal is properly before us. See Pa.R.A.P. 905(a)(5) (“[a]
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry on
the day thereof.”).
6 We note that in order to be eligible for PCRA relief, a PCRA petitioner must
be “currently serving a sentence of imprisonment, probation or parole for the
crime” at issue. 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Williams,
977 A.2d 1174 (Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010).
The docket reflects that appellant is still serving his sentence, as his probation
was revoked on November 9, 2015 following his guilty plea to insurance fraud
at CP-51-CR-0007456-2015 and he was sentenced to additional 4 years’
probation on the instant matter.
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findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). In order to be eligible for PCRA relief, a defendant must
plead and prove by a preponderance of the evidence that his conviction or
sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
Where the PCRA court has dismissed a petitioner’s petition without an
evidentiary hearing, as is the case here, we review the PCRA court’s decision
for an abuse of discretion. See Commonwealth v. Roney, 79 A.3d 595, 604
(Pa. 2013), cert. denied, U.S. , 135 S.Ct. 56 (2014) (citation
omitted). Moreover,
the right to an evidentiary hearing on a
post-conviction petition is not absolute. It is within
the PCRA court’s discretion to decline to hold a hearing
if the petitioner’s claim is patently frivolous and has
no support [in] either in the record or other evidence.
It is the responsibility of the reviewing court on appeal
to examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its determination
that there were no genuine issues of material fact in
controversy and in denying relief without conducting
an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal
citations omitted).
Here, appellant’s sole contention on appeal concerns the purported
ineffectiveness of trial counsel. To prevail on a claim of ineffective assistance
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of counsel under the PCRA, a petitioner must plead and prove by 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We apply
a three-pronged test for determining whether trial counsel was ineffective,
derived from the test articulated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and as applied in
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). Commonwealth v.
Simpson, 66 A.3d 253, 260 (Pa. 2013).
The Pierce test requires a PCRA petitioner to 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.
Id., citing Pierce, 527 A.2d at 975.
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011)
(citation omitted). Additionally, we note that counsel cannot be found
ineffective for failing to raise a claim that is devoid of merit. See
Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
Appellant contends that trial counsel was ineffective for not objecting to
and not requesting a correction of the trial court’s jury instruction on indecent
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assault of a person less than 13 years of age. (Appellant’s brief at 8.)
Appellant avers that trial counsel should have objected to the trial court’s jury
instruction because it failed to define the term “indecent contact.” (Id. at 8-
10.)
[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole, and
not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration.
Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible
error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014) (citations
and bracket omitted), appeal denied, 95 A.3d 275 (Pa. 2014)
Here, the trial court instructed the jury on the charge of indecent assault
of a person less than 13 years of age as follows, tracking, in part, Pennsylvania
Standard Jury Instruction § 15.312C:
The defendant has been charged with indecent assault
of a child. To find the defendant guilty of this offense,
you must find that the following two elements have
been proven beyond a reasonable doubt.
First, that the defendant has indecent contact with
[victim] or caused [victim] to have indecent contact
with the defendant. Second, that [victim] was less
than 13 years old.
Notes of testimony, 9/21/11 at 241-242; see also Pa.SSJI § 15.312C. On
the second day of deliberations, the court reiterated its instruction regarding
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the offense of indecent assault of a person less than 13 years of age. (See
notes of testimony, 9/22/11 at 7-8.)
“Indecent contact” is defined by statute as “[a]ny touching of the sexual
or other intimate parts of the person for the purpose of arousing or gratifying
sexual desire, in any person.” 18 Pa.C.S.A. § 3101. Although appellant is
correct that the trial court’s indecent assault instruction did not explicitly
define the term “indecent contact,” we find that appellant has failed to prove
he was prejudiced by trial counsel’s failure to object to the charge on this
basis. “A petitioner establishes prejudice when he demonstrates that there is
a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation
marks omitted).
Instantly, appellant contends that “it is very likely that the jury would
not have [found appellant guilty of] . . . indecent assault of a child had they
been instructed that the crime ‘requires a sexual intent or purpose.’”
(Appellant’s brief at 10.) Contrary to appellant’s contention, however, all of
the alleged criminal conduct was sexual in nature, thereby precluding such a
distinction. Moreover, the term “indecent contact” is clear and unambiguous
and can be discerned by the term’s common usage. See Commonwealth v.
Zambelli, 695 A.2d 848, 849 (Pa.Super. 1997) (stating that, “where language
of a statute is clear and unambiguous, it must be given effect in accordance
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with its plain and common meaning.” (citations omitted)). Here, the jury
heard considerable evidence that appellant repeatedly sexually abused the
minor victim by fondling her breasts and buttocks with his hands, behavior
that ultimately escalated to allegations that he vaginally raped her on several
occasions.7 (See notes of testimony, 9/20/11 at 27-33.) Appellant’s actions
were undoubtedly indecent contact according to the common usage of the
term. Thus, even if trial counsel had objected to and/or requested a correction
of the trial court’s jury instruction to define the term “indecent contact,”
appellant has not demonstrated “a reasonable likelihood the outcome of the
proceedings would have been different.” See Simpson, 66 A.3d at 260
(citation omitted).
We need not consider every prong of the Strickland/Pierce test when
one prong has not been satisfied, as is the case here. Commonwealth v.
Spotz, 84 A.3d 294, 319 (Pa. 2014) (stating, “[a]bsent a showing of such
prejudice, the claim of ineffectiveness fails, regardless of whether counsel
lacked a ‘reasonable basis.’”). Accordingly, we conclude that appellant’s
ineffectiveness claim warrants no relief.
Order affirmed.
7 The jury failed to reach a verdict with respect to appellant’s rape, sexual
assault, and indecent exposure charges, and the Commonwealth nolle
prosequied those charges.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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