Commonwealth Of Pa. v. Brown

2011 PA Super 44

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.CHARLES BROWN, Appellant

No. 1585 WDA 2008

SUPERIOR COURT OF PENNSYLVANIA

Filed: March 9, 2011

Appeal from the Order Entered September 8, 2008, in the

Court of Common Pleas of Allegheny County, Criminal

Division, at No: CP-02-CR-0008513-2000.

BEFORE: BOWES, LAZARUS, and COLVILLE^*, JJ.

OPINION BY BOWES, J.:

Charles Brown appeals from the September 8, 2008 order denying him PCRA relief. We affirm.

On April 21, 2000, Appellant was charged with two counts of attempted murder and one count each of aggravated assault, burglary, reckless endangerment, robbery of a motor vehicle, carrying an unlicensed firearm, and criminal mischief. On April 20, 2000, Appellant broke into the Pittsburgh, Pennsylvania apartment of his former girlfriend, Lisa B., who was not present, and destroyed various items therein. A resident of the apartment building followed Appellant, noticed that Appellant was armed, and telephoned police. Pittsburgh Police Officer Chris Wydra was dispatched to the building and en route, he encountered Appellant, who shotOfficer Wydra in his side and stole his police vehicle. Officer Wydra was transported to a nearby hospital in critical condition.

On April 23, 2001, Appellant proceeded to a non-jury trial, where the charges relating to the attempted murder of Lisa B. as well as the burglary and vandalism of Lisa B.'s home were withdrawn. After conducting a jury-trial-waiver colloquy, the court proceeded to hear the following evidence by means of stipulation. At approximately 5:45 p.m. on April 20, 2000, Pittsburgh Police Officers Bill Gorman and Chris Wydra were separately dispatched to an apartment building on Dawson Street in Pittsburgh based on a report that an armed intruder was on the premises. Officer Gorman arrived first and encountered Robert T., who informed him that Appellant broke into Lisa B.'s apartment and fled the area armed with two handguns. Officer Gorman broadcast a description of the perpetrator and began to patrol the area.

As Officer Wydra was approaching the apartment building, he caught sight of Appellant, who was in the parking lot of Schenley Park Animal Hospital walking toward the Boulevard of the Allies. Appellant matched the description of the suspect and signaled to Officer Wydra, who stopped his cruiser on Juliet Street and broadcast his whereabouts. Appellant started to approach Officer Wydra and then stopped and fumbled with an object in his waistband. Officer Wydra yelled at Appellant to display his hands whenAppellant pulled a revolver from his waist, pointed it at Officer Wydra, and emptied his gun. Officer Wydra was struck three times, twice in the bulletproof vest and once in his side.

Officer Wydra retrieved his own weapon and returned three rounds before his gun malfunctioned. Appellant sat down in the parking lot and started to fumble in his waistband a second time. Believing that Appellant was retrieving another gun and unable to use his own, Officer Wydra retreated behind a parked car and reloaded a new magazine into his firearm. Appellant approached Officer Wydra and then stopped when the officer pointed his gun at him. Appellant entered the police cruiser and started to drive toward Officer Wydra, who fired additional rounds at the vehicle. Appellant veered away from Officer Wydra as the cruiser was struck with bullets, and he crashed into a parked vehicle. Since Appellant was no longer threatening to strike him with the police vehicle, Officer Wydra ceased firing and radioed for assistance. He was transported to a local hospital, where he remained overnight.

Other police officers arrived on the scene and initiated a search for Appellant, who had fled on foot after the crash. They discovered Appellant concealed under debris in the shed of a nearby residence. In compliance with the officers' directive to come out and raise his hands, Appellant displayed his hands, which were bloodied, but said that he was unable toleave the shed because he had been shot. Appellant was removed and arrested. Appellant "spontaneously stated he shot at that cop because he wanted to die and I wish he would have shot me." N.T. Trial, 4/23/01, at 24. Medical personnel were summoned to attend to Appellant, and he was transported to the hospital. Police recovered a.38 caliber gun at the scene but did not locate a second firearm.

The following day, Allegheny County Detective Chris Kerns went to the hospital to interview Appellant. Appellant was administered his Miranda warnings and asked about a missing.32 caliber weapon. Appellant responded, "[D]on't you think if I had two guns I would have shot myself. There wasn't any.32."Id.at 24-25. Appellant was informed that Officer Wydra was going to survive his wound, and he responded, "I wish he would have given me a head shot. The m_f_ain't going to pull up on me, I ain't stupid." Id.at 25. When asked why he shot at Officer Wydra, Appellant responded that the officer had displayed his gun.

Lisa B. dated Appellant for approximately one year prior to the incident, but they terminated their relationship shortly before April 20, 2000. Appellant owned a.38 caliber handgun and a.32 caliber handgun, and Lisa B. found five rounds of.32 caliber ammunition and four rounds of.38 caliber ammunition in her apartment after the April 20, 2000 criminal episode and relinquished those items to police. Following their break-up, Appellant unsuccessfully attempted to reconcile with Lisa B., and when she refused, he threatened to kill her. Additionally, in the past, Appellant had told Lisa B. "that if she broke up with him, he would kill her then kill himself. He also made reference to wanting to go out in a gun fight with a cop. He stressed that to mean that he wanted to die in a gun fight with a cop." Id. at 26. Lisa B. did not believe that Appellant would have carried through with his threats to kill her.

Appellant vandalized Lisa B.'s apartment on April 17, 2000, and April 18, 2000, and she began to stay with a relative. Lisa B. had spoken with Appellant following the shooting, and he acknowledged that what he did was wrong but also believed that police had acted improperly. Specifically, Appellant told Lisa B. that Officer Wydra shot and struck Appellant as he was attempting to obtain his gun to give it to the officer and at that point, Appellant returned fire and then took the cruiser to escape being killed. Id. at 27.

Robert T. witnessed Appellant vandalize Lisa B.'s apartment on April 18, 2000, and also overheard him swearing and stating that he wanted to kill Lisa B. When Appellant returned to the apartment on April 20, 2000, Robert T. was afraid that he would damage the apartment again and followed him. After seeing a gun in Appellant's possession, Robert T. told him that he was going to telephone the police. Appellant replied, "I don'tcare. I'm going to be arrested today, I will shoot a cop." [Appellant] told [Robert T.], he had been back there two days, couldn't take it anymore, [Appellant] said he would kill himself, wasn't going to jail." Id.at 29. Appellant repeated that he planned to "kill a cop then kill himself." Id. After Appellant placed his revolver to his head, Robert T. went to his own apartment and contacted police. Appellant then called for Robert T., who told him that he had telephoned the police. Appellant responded, "I don't care, I will shot the m_f_ing cop, I will put a hole in my own head too." Id. at 30. At that point, Appellant fled.

Based on this evidence, Appellant, who did not have a license to carry a firearm, was convicted of attempted murder, aggravated assault, robbery of a motor vehicle, the firearms violation, and recklessly endangering another person. On February 1, 2002, he was sentenced to twenty to forty years imprisonment for attempted murder and to a consecutive jail term of five to ten years for robbery of a motor vehicle. No penalty was imposed on the remaining counts, and the court recommended that Appellant's sentence be served in a facility that would help him with his mental health issues. On appeal, we affirmed and noted that the contentions that Appellant raised on appeal related to ineffective assistance of counsel, which had to be deferred to collateral review under Commonwealth v.Grant, 813 A.2d 726 (Pa. 2002). Commonwealth v. Brown, 829 A.2d 353 (Pa.Super. 2003) (unpublished memorandum).

Appellant filed a request for appointed counsel for purposes of preparing a PCRA petition, which was timely under 42 Pa.C.S. § 9545. Counsel was appointed but withdrew without filing a petition. After the PCRA relief was denied, we reversed because counsel had improperly been permitted to withdraw without analyzing the questions that Appellant had sought to raise on the direct appeal. We remanded for appointment of new counsel and the preparation of a petition raising the issues. Commonwealth v. Brown, 897 A.2d 514 (Pa.Super. 2006) No. 256 WDA 2005) (unpublished memorandum).

New counsel was appointed; counsel filed a PCRA petition alleging that trial counsel was ineffective. The PCRA court conducted an evidentiary hearing on June 27, 2008. Appellant's trial counsel, Jack Conflenti, testified as follows. He had practiced in the area of criminal defense for twenty-five years when he started to represent Appellant and recognized that the matter was serious since a police officer was shot. Mr. Conflenti went to the scene of the crime, N.T. Hearing, 6/27/08, at 13, and also "reviewed the discovery. And the defense that [Appellant] wanted me to proceed with." Id. at 7. Mr. Conflenti recalled that he personally met with Appellant at jail, and he also had discussions about the matter with members of Appellant'sfamily. Id. at 12. Mr. Conflenti testified that when he spoke with Appellant, "I know he was frustrated, so I re-explained a lot of things." Id. Trial counsel continued that the "conversation with [Appellant] was awkward and intense. And I wasn't at all sure I was driving...