Opinion
975 EDA 2021 J-S04040-22
02-10-2022
COMMONWEALTH OF PENNSYLVANIA v. RAHEEM BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered May 5, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010356-2013
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Raheem Brown appeals from the May 5, 2021 order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant facts and procedural history of this case as follows:
On June 11, 2013, [Appellant] was arrested and charged with second degree murder, conspiracy, burglary, robbery and [carrying a firearm without a license], in connection with the robbery and shooting death of Rush Thompson ["Thompson"]. From May 5 to May 15, 2015, [Appellant] and his co-defendant Emmanuel Duran were tried before this Court in the presence of a jury. [Appellant] was represented by Michael Huff, Esquire. On May 15, 2015, the jury found [Appellant] guilty of all charges. That same day, this Court sentenced him to the mandatory sentence
of life imprisonment without the possibility of parole on the second-degree murder charge, 20 to 40 years state incarceration on conspiracy, 10 to 20 years state incarceration on robbery, 10 to 20 years state incarceration on burglary, and 3½ to 7 years state incarceration on [carrying a firearm without a license]. All of the terms were to run concurrently with one another. [Appellant] filed a post-sentence motion for reconsideration on May 22, 2015. This was denied by operation of law on September 30, 2015. On October I, 2015, [Appellant] filed a Notice of Appeal to the Superior Court; the Superior Court affirmed his judgment of sentence on December 28, 2016. On June 27, 2017, the Pennsylvania Supreme Court denied [Appellant's] petition for allowance of appeal.
On July 14, 2017, [Appellant] filed the instant first and timely pro se PCRA petition. On January 19, 2018, [Appellant] filed a pro se Amended Petition. On March 15, 2018, George Yacoubian, Esquire was appointed as PCRA counsel. On August 3, 2018, [Appellant] filed a motion to proceed pro se. On May 8, 2019, this Court conduced a Grazier hearing and permitted [Appellant] to proceed pro se. On June 28, 2019, [Appellant] filed a pro se supplemental petition. On July 15, 2019, [Appellant] retained Teri Himebaugh, Esquire as private counsel. On November II, 2019, Ms. Himebaugh filed an Amended Petition. On February 20, 2020, she filed a Supplemental Petition. On December 16, 2020, the Commonwealth filed its Motion to Dismiss. On April 5, 2021, this Court sent [Appellant] a Notice of Intent to Dismiss Pursuant to Rule 907. [Appellant] did not reply to the 907 Notice. On May 5, 2021, this Court dismissed [Appellant's] petition based upon lack of merit. On May 13, 2021, [Appellant] appealed this dismissal to Superior Court.PCRA court opinion, 8/20/21 at 1-2 (footnotes added).
See Commonwealth v. Brown, 159 A.3d 1016 (Pa.Super. 2016), appeal denied, 169 A.3d 595 (Pa. 2017).
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Thereafter, on August 20, 2021, the PCRA court filed a comprehensive Rule 1925(a) opinion addressing all of Appellant's claims.
Appellant raises the following issues for our review:
I. Did the PCRA Court err when it found that trial counsel did not violate Appellant's rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1 section 9 of the Pennsylvania Constitution by ineffectively failing to make the correct argument in support of severance?
II. Did the PCRA Court err when it found that trial counsel did not violate Appellant's rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1 section 9 of the Pennsylvania Constitution by ineffectively failing to request that the Court give the jury a contemporaneous instruction on the limited purpose for which they could consider Myron Baker's testimony about the November 9, 2009 robbery evidence in relation to Appellant's guilt or innocence?
III. Did the PCRA Court err when it found that trial counsel did not violate Appellant's rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1 section 9 of the Pennsylvania Constitution by ineffectively failing to request an immediate cautionary instruction be given in relation to the testimony of Myron Baker, who violated the Court's Sequestration Order?
IV. Did the PCRA Court err when it found that trial counsel did not violate Appellant's rights under
the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1 section 9 of the Pennsylvania Constitution by ineffectively failing to object to the prosecutor's opening statement which vouched for the reliability of the identification made by [] eyewitness Fahnbulleh[?]
V. Did the PCRA Court err in finding that Appellant's constitutional right to due process of law and a fair trial was not violated by the cumulative impact of trial counsel['s] ineffectiveness in violation of the Sixth
Amendment? Appellant's brief at 3-4.
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 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). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
All of Appellant's claims concern the ineffectiveness of his trial counsel. To prevail on a claim of ineffective assistance 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.
This court has explained that a petitioner "must meet all three prongs of the test for ineffectiveness[.]" Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted), appeal denied, 104 A.3d 523 (Pa. 2014). "[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 (Pa. 2011).
Following a thorough review of the record, including the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, it is our determination that Appellant's ineffectiveness claims warrant no relief. The PCRA court comprehensively discussed each of Appellant's allegations of ineffective assistance of trial counsel and concluded that they failed to satisfy one or more prongs of the Pierce test. We find that the PCRA court's conclusions are supported by competent evidence and are clearly free of legal error.
Specifically, we agree with the PCRA court that Appellant failed to demonstrate that there was a reasonable probability that the outcome of the trial would have been different had he been tried separately from his co-defendant. See PCRA court opinion, 8/20/21 at 4-5. Likewise, we agree with the PCRA court that trial counsel had a reasonable basis for not requesting a limiting instruction with respect to Myron Baker's testimony, as it could have served to highlight negative evidence. Id. at 5-6.
We further agree with the PCRA court that trial counsel was not ineffective for failing to request an immediate cautionary instruction with respect to Baker's testimony, as the record demonstrated his violation of the trial court's sequestration order was unintentional and trial counsel was provided the opportunity to question him. Id. at 6-7. Additionally, we agree with the PCRA court that the prosecutor did not improperly vouch for the credibility of eyewitness Wuyatta Fahnbulleh during his opening statement and Appellant's ineffectiveness claim in this regard is devoid of arguable merit. Id. at 7-8.
Lastly, we agree with the PCRA court that Appellant is not entitled to relief on his claim that the cumulative prejudice suffered from trial counsel's purported ineffectiveness rendered his trial unconstitutionally unfair. See id. at 9-10; Appellant's brief at 52-55.
In reaching this conclusion we note that our Supreme Court has long recognized that "no number of failed [ineffectiveness] claims may collectively warrant relief if they fail to do so individually." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citations omitted). "[W]here a claimant has failed to prove prejudice as the result of any individual errors, he cannot prevail on a cumulative effect claim unless he demonstrates how the particular cumulation requires a different analysis." Commonwealth v. Wright, 961 A.2d 119, 158 (Pa. 2008) (emphasis added).
Here, we agree with the PCRA court that Appellant has failed to do so in this instance. Appellant's ineffectiveness claims at issue are, in large part, factually and legally independent, with no reasonable connection warranting a conclusion that their cumulative effect amounts to actual prejudice.
Accordingly, we adopt the PCRA court's comprehensive August 20, 2021 opinion as our own for purposes of this appellate review.
Order affirmed.
Judgment Entered.
(Image Omitted) [*] Former Justice specially assigned to the Superior Court.