J-S53005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK S. BRAXTON :
:
Appellant : No. 1550 EDA 2018
Appeal from the PCRA Order April 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011084-2014
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 13, 2019
Appellant, Frank S. Braxton, appeals from the order entered on April 24,
2018, which denied his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court ably summarized the evidence produced during
Appellant’s bench trial:
The complaining witness, [M.E. (hereinafter “the Victim”)],
testified that, on May 2, 2014, at approximately 1:30 p.m.,
he was involved in a "tussle," in the vicinity of 54th Street and
Baltimore Avenue, in the City of Philadelphia, during which
he was struck on the head with a hard object. As a result of
the blow[,] he received[] a concussion[; also,] six staples
were required to close the laceration [on his head]. He []
testified that his memory [is now] unclear and that he had to
drop out of school as a result of his injuries.
As background, [the Victim] testified that[,] prior to this
event, he and [Appellant] had been friends since childhood
and were "like brothers." When he was previously
incarcerated on an unrelated matter, [Appellant] had
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promised to store and maintain [the Victim’s] personal
property. On being released from detention, [the Victim]
learned that [Appellant] had disposed of this property[,]
prompting him to commence a lawsuit to recover the value
of his property.
On May 4, 2014, [the Victim] was standing[] among a group
of men in front of the "family" barber shop, when [Appellant]
approached him saying[:] "You told people I stole your
stuff." Prior to the "tussle" breaking out, [the Victim] stated,
in his statement given to Philadelphia Police Detective
[Leinmiller]:
[]Then he shifted his feet like he's going to fight me.
I went to walk away and he punched me with a left
fist on the back of my head. I grabbed him by the
waist and he's raining punches down on me. I felt
something hard in his waist area. I thought it was his
belt buckle. Some of the people around start breaking
us up.
Then I felt something hit me real hard in the back of
the head. Blood started shooting out everywhere, and
when I looked up, [Appellant] had a gun in his right
hand. He tried to hit me with the gun again, but I
moved and it brushed past my face[.]
Philadelphia Police Officer[] Marc Peterson, testified that he
was the first officer to arrive at the scene. He described [the
Victim] as being upset, hurt[,] and bleeding from the head.
[Detective Peterson] also testified that [the Victim] identified
[Appellant] as his assailant.
PCRA Court Opinion, 2/6/19, at 4-5 (citations omitted).
The trial court found Appellant guilty of aggravated assault, firearms not
to be carried without a license, carrying firearms on the public streets of
Philadelphia, simple assault, and possessing instruments of crime.1 On
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 6108, 2701(a), and 907(a),
respectively.
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January 14, 2016, the trial court sentenced Appellant to serve an aggregate
term of six to 23 months in jail, followed by three years of probation, for his
convictions. Appellant did not file a direct appeal from his judgment of
sentence.
On January 14, 2017, Appellant filed a timely, counseled PCRA petition.
Appellant raised a number of claims in this petition, including that trial counsel
was ineffective for failing to “present relevant evidence indicating [Appellant]
no longer possessed the weapons referenced by the Commonwealth” and
“failed to question [the Victim] regarding his conviction for crimen falsi crimes,
specifically theft of prescription forms and utilizing forgery to [] falsely
prescribe control[led] substances.” Appellant’s PCRA Petition, 1/14/17, at 7.
On April 24, 2018, the PCRA court held a hearing on Appellant’s petition
and, at the conclusion of the hearing, the PCRA court denied Appellant
post-conviction collateral relief. N.T. PCRA Hearing, 4/24/18, at 69; PCRA
Court Order, 4/24/18, at 1. Appellant filed a timely notice of appeal and raises
two issues to this Court:
1. Did the PCRA court err by dismissing the PCRA petition of
[Appellant] where there was no reasonable strategic basis for
defense counsel not to have obtained police reports that a
firearm was stolen from [Appellant] prior to the May 4, 2014
incident with [the Victim]?
2. Did the PCRA court err by dismissing the PCRA petition of
[Appellant] where there was no reasonable strategic basis for
defense counsel not to have investigated the criminal
background of [the Victim]?
Appellant’s Brief at 3 (some capitalization omitted).
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Our Supreme Court has held:
Under the applicable standard of review, we must determine
whether the ruling of the PCRA court is supported by the
record and is free of legal error. The PCRA court's credibility
determinations, when supported by the record, are binding
on this Court. However, this Court applies a de novo
standard of review to the PCRA court's legal conclusions.
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffective assistance of counsel which, in
the circumstances of the particular case, 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).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.
First, Appellant claims that his trial counsel was ineffective for failing “to
obtain police reports that a firearm was stolen from [Appellant] prior to the
May 4, 2014” assault. Appellant’s Brief at 7. As the PCRA court thoroughly
explained, Appellant’s claim is meritless:
[the Victim] testified at trial that he could not identify his
assailant; in his statement to Detective [Leinmiller], he
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clearly stated that [Appellant] struck him with a gun. Since
he did not identify a particular gun, it is immaterial whether
any of [Appellant’s] known guns [had been stolen from him
or] were in police custody at the time he struck [the Victim].
Furthermore, at the [PCRA] hearing, held on April 24, 2018,
[Appellant’s trial counsel] testified that he [had]
conversations with [Appellant] regarding the police custody
of his firearms but came to no conclusion as to the
evidentiary value of the police custody. He testified[:]
[]No one ever alleged in this case, and [Appellant]
should tell you this, that a particular gun that was
owned by [Appellant] was used to injure the [Victim].
No one said that. All that happened during the trial
was that the [Victim] said he was struck over the head
with a, what he believed to be, firearm. So whether
or not if, I believe [Appellant] at the time was a, was
it a bounty hunter or something? He talked about a
number of guns that he had, I think three. This is all
from recollection a couple years ago and then at one
time or another they were all stolen from him. And
this all came out. He was asked about this on the
stand. He actually testified to this and the district
attorney asked him about this when he took the stand,
so I'm not sure if he was hit by a [.45] caliber. But I
think what [Appellant] was trying to say was because
his [.45] caliber had been stolen maybe a couple years
before, he couldn't have hit the complainant over the
head with a [.45] caliber maybe.
...
I don't think it was relevant in a proper defense for
[Appellant], given that the [Victim] never said that it
was [Appellant’s] specific, let me give you an
example, red gun that had been stolen two years ago;
it could have been any gun at the time.
Simply put, just because [Appellant’s] known guns were in
police custody [does not] alter the fact that he possessed a
gun at the time he struck [the Victim]. It is clear from the
record that [Appellant] has failed to meet either the second
or third prong of the [ineffectiveness of counsel] test. That
is, he failed to establish "(2) that counsel's action or inaction
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was not grounded on any reasonable basis designed to
effectuate appellant's interest; and (3) that there is a
reasonable probability that the act or omission prejudiced
appellant in such a way that the outcome of the proceeding
would have been different." That is, he has failed to
demonstrate that trial counsel's failure to investigate and
secure the records of the police custody of his guns had no
reasonable basis and that he was prejudiced in any way by
counsel's course of action.
PCRA Court Opinion, 2/6/19, at 6-7 (footnote and some citations omitted).
We agree with the PCRA court’s cogent analysis and thus conclude that
Appellant’s first claim on appeal fails.
For Appellant’s second claim on appeal, Appellant contends that his trial
counsel was ineffective for failing to investigate and present, during the bench
trial, the Victim’s federal criminal convictions for conspiracy and possessing a
controlled substance with the intent to deliver (hereinafter “PWID”).
According to Appellant, the Victim’s convictions involved dishonesty or false
statement – and were thus admissible at trial and probative of the Victim’s
credibility – because the circumstances underlying the convictions were that
“[the Victim] was working for a doctor, selling prescriptions from the doctor,
and then writing out the prescriptions and selling drugs on the street.”
Appellant’s Brief at 10-11. This claim fails.
As we have explained:
“For the purpose of attacking the credibility of any witness,
evidence that the witness has been convicted of a crime,
whether by verdict, or by plea of guilty or nolo contendere,
shall be admitted if it involved dishonesty or false statement.”
Pa.R.E. 609(a). Crimes involving dishonesty or false
statement are commonly referred to as crimen falsi crimes.
Crimen falsi involves the element of falsehood, and includes
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everything which has a tendency to injuriously affect the
administration of justice by the introduction of falsehood and
fraud.
When deciding whether a particular offense is crimen falsi,
one must address both the elemental aspects of that offense
and the conduct of the defendant which forms the basis of
the anticipated impeachment. Accordingly, this Court
employs a two-step procedure to determine whether a crime
is crimen falsi. First, we examine the essential elements of
the offense to determine if the crime is inherently crimen falsi
– whether dishonesty or false statement are a necessary
prerequisite to commission of the crime. Second, if the crime
is not inherently crimen falsi, this Court then inspects the
underlying facts that led to the conviction to determine if
dishonesty or false statement facilitated the commission of
the crime.
Commonwealth v. Davis, 17 A.3d 390, 395-396 (Pa. Super. 2011)
(corrections and some quotations and citations omitted).
During the PCRA hearing, Appellant introduced no documentary
evidence demonstrating that the Victim was convicted of any crime. See N.T.
PCRA Hearing, 4/24/18, at 1-70. Nevertheless, the Commonwealth conceded
that the Victim was convicted, in federal court, of “conspiracy and unlawful
possession with intent to distribute Oxycodone.” Id. at 31. However, neither
PWID nor conspiracy to commit PWID is “inherently crimen falsi.” See
Commonwealth v. Coleman, 664 A.2d 1381, 1384-1385 (Pa. Super. 1995)
(holding that a PWID conviction is not inherently crimen falsi);
Commonwealth v. Causey, 833 A.2d 165, (Pa. Super. 2003) (“[a]ppellant
cites to no authority which would support a finding that conviction of a drug-
related offense can be considered a crimen falsi conviction which bears upon
a witness's honesty or truthfulness and our research has uncovered no
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authority for such a proposition”); 18 Pa.C.S.A. § 903(a) (“A person is guilty
of conspiracy with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he: (1) agrees with such
other person or persons that they or one or more of them will engage in
conduct which constitutes such crime or an attempt or solicitation to commit
such crime; or (2) agrees to aid such other person or persons in the planning
or commission of such crime or of an attempt or solicitation to commit such
crime”); Commonwealth v. Savage, 566 A.2d 272, 276 (“agreement of two
or more persons to act in concert for a criminal purpose remains the evil
against which the criminal conspiracy statute is directed”).
Therefore, as the PCRA petitioner, it was Appellant’s burden to introduce
“the underlying facts that led to [the Victim’s] conviction[s],” so that the PCRA
court could “determine if dishonesty or false statement facilitated the
commission of the crime[s].” See Davis, 17 A.3d at 395-396. However,
during the PCRA hearing, Appellant introduced no evidence, whatsoever, to
establish the underlying facts that led to the Victim’s convictions. See N.T.
PCRA Hearing, 4/24/18, at 1-70. Instead, in his attempt to establish that the
Victim’s federal convictions involved dishonesty or false statement, Appellant
relied on the federal superseding indictment, which charged the Victim with
the crimes. See Appellant’s PCRA Petition, 1/14/17, at Exhibit F; N.T. PCRA
Hearing, 4/24/18, at 6. Yet, the superseding indictment is a mere charging
document. See F.R.Crim.P. 7. It established the crimes that the federal
government charged the Victim with – it did not establish “the underlying facts
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that led to [the Victim’s] conviction[s].” See Davis, 17 A.3d at 395-396
(emphasis added). And, in the absence of any evidence that the Victim
pleaded guilty based upon the allegations in the charging document, 2 the
evidence Appellant produced during the PCRA hearing fails to satisfy his
burden of production that “the underlying facts that led to [the Victim’s]
conviction” involved dishonesty or false statement. As such, Appellant failed
to demonstrate that the evidence would have been admissible at trial and,
correspondingly, failed to demonstrate that his trial counsel was ineffective
for not introducing the evidence. Appellant’s claim of error fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2019
____________________________________________
2Indeed, during the PCRA hearing, Appellant introduced no evidence as to
whether the Victim went to trial or entered a plea to the crimes. See N.T.
PCRA Hearing, 4/24/18, at 1-70.
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