Commonwealth v. Brown

279 A.3d 1283 (Table)

COMMONWEALTH of Pennsylvania

v.Christopher Wiley BROWN, Appellant

No. 956 WDA 2021

Superior Court of Pennsylvania.

Filed: May 25, 2022

MEMORANDUM BY OLSON, J.:

Appellant, Christopher Wiley Brown, appeals from the order entered on July 23, 2021, dismissing his first petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. We affirm.

We briefly summarize the facts and procedural history of this case as follows. Appellant hired a fifteen-year-old female, S.A., to care for his disabled fiancée at an apartment the couple shared in Brownsville, Pennsylvania. On February 9, 2016, S.A. agreed to spend the night after watching television and playing games with Appellant's fiancée. While S.A. was sleeping on the couch in the living room, Appellant came out of the bedroom and shackled S.A.’s legs, handcuffed her hands behind her back, and put a ball gag in S.A.’s mouth. Appellant rubbed his exposed genitals on S.A.’s bare feet and made her grope him. The victim eventually escaped and reported the incident to her father and the police. During subsequent investigations, the police found a box under Appellant's bed containing leg shackles, handcuffs, and a ball gag. On March 10, 2017, a jury convicted Appellant of two counts of kidnapping, two counts of indecent assault, and one count each of false imprisonment and corruption of minors.¹ The trial court sentenced Appellant to an aggregate term of three to eight years of imprisonment. The court also ordered Appellant to comply with lifetime registration as a sex offender. On August 27, 2018, this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Brown , 2018 WL 4057387 (Pa. Super. 2018) (unpublished memorandum). On June 19, 2019, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel to represent Appellant. Appointed counsel filed an amended PCRA petition. The PCRA court held an evidentiary hearing on February 11, 2020.² By order and opinion filed on July 23, 2021, the PCRA court denied relief.

This timely appeal resulted.³ On appeal, Appellant presents the following issues for our review:

1. Whether the PCRA court erred in denying relief to Appellant, based on a claim of ineffective [assistance of] trial counsel, when trial counsel failed to strike a juror during the voir dire process who indicated that they would be biased against Appellant[?]

2. Whether the PCRA court erred in denying relief to Appellant, based on a claim of ineffective [assistance of] trial counsel, when trial counsel failed to call certain witnesses at the time of trial[?]

3. Whether the PCRA court erred in denying relief to Appellant, based on a claim of ineffective [assistance of] appellate counsel, when appellate counsel failed to preserve certain issues for appeal, including claims that the trial verdicts were against the weight of the evidence, and insufficient evidence as to his convictions for indecent assault and corruption of minors[?]

Appellant's Brief at 4 (superfluous capitalization omitted).

Appellant's claims implicate the effectiveness of trial and direct appeal counsel. We adhere to the following standards:

Our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.

We presume that the petitioner's counsel was effective. To establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective 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.

The burden is on the [petitioner] to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her 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. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness.

The prejudice standard for an ineffectiveness claim is a higher standard than the harmless error analysis typically applied when assessing allegations of trial court error. Instead, a petitioner must prove actual prejudice, which our Supreme Court has defined as follows:

A reasonable probability that, but for counsel's lapse, the result of the proceeding would have been different. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Ultimately, a reviewing court must question the reliability of the proceedings and ask whether the result of the particular proceeding was unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.

Commonwealth v. Campbell , 260 A.3d 272, 277–278 (Pa. Super. 2021) (internal citations, quotations, and brackets omitted).

First, Appellant argues that "trial counsel was ineffective for failing to strike a clearly biased juror from his jury[.]" Appellant's Brief at 8 (capitalization omitted). Appellant asserts that Juror No. 254 was biased against him because she was a prior caseworker with Fayette County Children and Youth Services and this case involved "numerous sex-related offenses involving a 15-year-old juvenile." Id. at 9. Moreover, Appellant posits that Juror No. 254 knew the police officer involved in this case, worked for charities supporting crime victims, and testified during voir dire that it would be difficult to be fair and impartial. Id. Finally, Appellant claims there was no reasonable basis for trial counsel not to strike Juror No. 254 merely because trial counsel "was personally acquainted with [her] and had represented members of her family" and "believed the decision to allow her to remain would be beneficial to Appellant's case." Id.

The party seeking exclusion of the juror has the burden of establishing that the juror was not impartial. Commonwealth v. Duffey , 855 A.2d 764, 770 (Pa. 2004). "The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor." Commonwealth v. Briggs , 12 A.3d 291, 333 (Pa. 2011) (citation omitted). "It must be determined whether any biases or prejudices can be put aside on proper instruction of the court." Id.

On this issue, the PCRA court determined:

[Appellant] failed to show that [trial counsel's] decision not to strike Juror No. 254 was ineffective. [Trial counsel] made a reasonable strategic decision. The trial transcript shows that Juror No. 254 swore she could be impartial. [Trial counsel] testified that that he knew Juror No. 254 and felt that she would be favorable towards him and [Appellant]. [Appellant] was seated next to [trial counsel] and had every opportunity to have input on the selection. If [Appellant] had a strong opinion on challenging that particular juror, that would have been the appropriate time to convey that opinion. There was no evidence that [trial counsel] violated any direct instructions from [Appellant].

PCRA Court Opinion, 7/23/2021, at 9-10.

Here, upon review of the record, we conclude that there is no merit to Appellant's claim that trial counsel was ineffective for failing to strike Juror No. 254 for alleged bias and impartiality. During voir dire , Juror No. 254 forthrightly described her employment history and potential connections to this case while under oath as detailed at length above. She stated that her personal relationships would not cause her "any problem" with the case and that she would be "able to decide the case based solely on the evidence and the law." N.T., 3/8/2017, at 11-12 and 17-20. As such, Appellant has not shown that Juror No. 254 was impartial and, therefore, trial counsel was not ineffective for failing to strike her from the jury.

In his second issue presented, Appellant contends that "trial counsel failed to call certain witnesses at the time of trial[.]" Appellant's Brief at 11. On this claim, Appellant avers, in sum:

In this matter, there were persons present at the time of trial that trial counsel chose not to call, despite Appellant's unequivocal requests that they be permitted to testify. Further, there were two (2) neighbors identified as witnesses. Although one neighbor was "uncooperative," there was no indication that this neighbor had been subpoenaed. The additional neighbor apparently could not remember what she saw, but no statement was ever taken by trial counsel. At the time of the [PCRA evidentiary] hearing, the names of these witnesses were not known, but they were known at the time of trial and were available. Although one of them was willing to testify, both had the ability to do so if issued a subpoena. Lastly, these witnesses would have testified to what they observed [the] night [of the incident] and called the victim's timeline into question; specifically, that the victim was observed outside of Appellant's residence around the time she was said to have been restrained in his home against her will. Additionally, there were numerous character witnesses that were available to testify at the time of trial. [T]rial counsel indicated that he did not call them for strategic reasons[.]

Id. at 11-12 (emphasis in original). Ap...