J-S11003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ANTHONY BROCKINGTON                    :
                                        :
                   Appellant            :   No. 3344 EDA 2017

         Appeal from the Judgment of Sentence January 14, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0005030-2014

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ANTHONY BROCKINGTON                    :
                                        :
                   Appellant            :   No. 3345 EDA 2017

         Appeal from the Judgment of Sentence January 14, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0005031-2014


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 1, 2019

     Appellant, Anthony Brockington, appeals nunc pro tunc from the

January 14, 2015 judgment of sentence. We affirm.

     The trial court summarized the facts of the crimes as follows:

           On January 19, 2014 an altercation occurred between
     Appellant and Commonwealth witness, Awilda Valentine (“AV”) in
     the area of 9th and Erie in the city and county of Philadelphia.
     Notes of Testimony (“N.T.”), 10/24/2014, at 4. Around 8:45 AM,
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     AV was waiting at the bus stop on her way to work when Appellant
     approached her. Id. at 4. Appellant asked AV if she was waiting
     for the bus to which she replied “yes.” Id. at 6. Appellant then
     told AV that he was waiting for the bus as well but he was going
     to wait in his car and that AV should join him, to which she
     declined. Id.

           A few minutes after the initial conversation, Appellant
     entered his car, which was parked on 9th Street. Id. at 7. AV
     saw that the car was running when Appellant entered his vehicle
     because smoke was coming out of the muffler. Id. AV then texted
     her daughter that something “fishy or funny” was occurring and
     as a result she tried to read the license plate from the vehicle
     Appellant entered into. Id. at 8.

           At trial, AV testified she was not aware as to whether
     Appellant ever exited or came back out of his vehicle. AV testified
     that she could only see that the car was shaking so she assumed
     that he was going to come out. AV then took her attention off of
     Appellant’s vehicle to locate the bus. Id. at 9. At this point, AV
     felt two hands grab her shoulders, accompanied by someone
     saying, “okay, listen, come on.” Id. at 10. AV then testified that
     when she felt the grabbing she turned to look and could see
     Appellant’s face. Appellant tried to pull AV and she went about
     “two or three steps back” before she was able to break free from
     him. Id. Once free, AV ran across the street to a convenience
     store and called the police. Id. at 11. While AV was in the store,
     she could still see Appellant on the corner calling for her saying,
     “come on, come on baby.” Id. A few seconds later, Appellant
     walked to his car and was able to drive about half way down 9th
     Street before being stopped by police. Id. at 12. Police took AV
     to where the vehicle was stopped, and she identified Appellant as
     her attacker. Id. at 16.

            At trial, Appellant testified on his own behalf. He admitted
     to having a couple of beers the morning of January 19, 2014. Id.
     at 40. Appellant testified that upon looking out of his home
     window, he noticed that he had a flat tire so he went outside to
     inspect his vehicle. Id. Per Appellant, no one was on the corner
     of 9th Street and he never saw AV. Id. at 47. Appellant contended
     that he entered into his vehicle because a “quick blast of cold air”
     hit him and he sat in the car to get out of the cold. Id. Appellant
     denied that the vehicle’s ignition was ever on and further asserted
     that the police later moved his vehicle from its former parking spot

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       to his arrest location. Id. at 48. Moreover, Appellant denied that
       AV was brought to his arrest site to identify him. Id. at 51.

Trial Court Opinion, 6/22/18, at 2–3.

       The trial court summarized the procedural history as follows:

              Appellant was held for court on April 30, 2014.           On
       October 24, 2014, the Appellant proceeded via nonjury trial and
       was found guilty of Simple Assault, Harassment, and [driving
       under the influence (“DUI”).1]. On July 14, 2015[2] he was
       sentenced to two years of probation. Post-sentence motions were
       filed and were denied by operation of law. No direct appeal was
       filed. A Post Conviction Relief Act [(“PCRA”)] Petition was filed on
       October 20, 2015.         Appellant’s direct appellate rights were
       reinstated nunc pro tunc on September 12, 2017. The Appellant
       filed . . . timely appeal[s] on October 9, 2017.[3]


____________________________________________


1  18 Pa.C.S. §§ 2701, 2709, and 75 Pa.C.S. § 3802, respectively. Simple
assault and harrassment were charged at Philadelphia Docket Number CP-51-
CR-0005030-2014, docketed in this Court at 3344 EDA 2017. DUI was
charged at Philadelphia Docket Number CP-51-CR-0005031-2014, docketed
in this Court at 3345 EDA 2017.

      In addition, the trial court granted a defense motion for judgment of
acquittal for attempted kidnapping, recklessly endangering another person,
and false imprisonment. Order, 1/24/14; N.T., 10/24/14, at 38.

2  We note that the sentencing transcript contains an incorrect cover sheet
identifying the sentencing hearing as occurring on July 14, 2015. The notes
of testimony and trial court docket reflect that sentencing occurred on
January 14, 2015. N.T. (Sentencing), 1/14/15, at 1; Docket Entry 65 at
Docket Number CP-51-CR-0005030-2014; Docket Entry 60 at Docket Number
CP-51-CR-0005031-2014.

3   Appellant filed notices of appeal from each docket number. Appellant’s
appeal docketed at 3344 EDA 2017 was dismissed on November 1, 2018, for
failure to file a brief. Due to a breakdown in the operations of this Court,
Appellant’s timely Application for Reconsideration was not resolved until
March 11, 2019, at which time we granted reconsideration, vacated the
November 1, 2018 dismissal order, and consolidated that appeal with the
appeal docketed at 3345 EDA 2017. Order, 3/11/19.

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Trial Court Opinion, 6/22/18, at 3. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      Question #1

      Did the prosecution’s cross-examination of [Appellant] regarding
      a pending collateral criminal matter constitute prejudical [sic] and
      harmful error?

      Question #2

      Was the defense counsel’s failure to introduce character testimony
      harmful error?

      Question #3

      Was trial counsel ineffective and can it be raised on this appeal to
      the Superior Court?

Appellant’s Brief at 2 (unnecessary capitalization removed).

      Appellant first contends the prosecution “impermissibly questioned

[Appellant] about a ‘pending DUI matter’ in an attempt to impeach

[Appellant’s] credibility. . . .” Appellant’s Brief at 6. As noted supra, Appellant

was charged, inter alia, with DUI stemming from the January 19, 2014

incident. At trial, Appellant testified that he had drunk three beers between

the hours of 6:00 or 7:00 a.m. and 8:45 a.m. on the morning of the crimes.

N.T., 10/24/14, at 40, 45. The defense stipulated to Appellant’s breathalyzer

results of .171. Id. at 30. During cross-examination, the Commonwealth, in

response to Appellant’s direct testimony that he had been drinking the

morning of the crimes, id. at 40, asked Appellant about the size of the beer


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cans Appellant drank. Id. at 53. The exchange between the prosecutor and

Appellant was as follows:

      Q.    Which ones [size cans] do you drink?

      A.    I just drink a can, and I don’t do that them [sic] anymore.

      Q.    You don’t do what anymore?

      A.    I don’t drink anymore at all.

      Q.    You stopped drinking after this incident?

      A.    Yes, sir.

Id. (emphasis added).     Appellant then retracted this testimony and stated

that he has “a small drink here and there,” but he does not “drive and drink.”

Id. at 54. In response to this testimony, the Commonwealth asked Appellant

if he was arrested for DUI “[o]n [M]ay 30th, 2014, four months after this

arrest,” and Appellant answered, “Yes, I was.” Id. Defense counsel did not

object. The Commonwealth’s question merely was in response to Appellant’s

direct testimony that he no longer drank “at all” and Appellant’s further

explanation that he did not drink and drive.

      The trial court correctly concluded that Appellant’s failure to object at

trial resulted in waiver of the issue. Trial Court Opinion, 6/22/18, at 4. “Issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a); See Commonwealth v. Spell, 28 A.3d 1274,

1280 (Pa. 2011) (failure to raise a timely objection waives issue). We agree

with the trial court that the issue is waived.


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       In his second issue, Appellant avers that defense counsel did not

introduce character testimony, which he describes as a claim of “harmful

error.” Appellant’s Brief at 11. Appellant’s argument actually is an allegation

of ineffective assistance of counsel for the failure to present character

testimony. Id. at 11–12. The Commonwealth responds that this issue of

ineffective assistance of counsel cannot be reviewed in this direct appeal nunc

pro tunc but should be deferred to collateral review under the PCRA.

Commonwealth’s Brief at 6–7.

       Absent certain circumstances, “claims of ineffective assistance of

counsel are to be deferred to PCRA review; . . . such claims should not be

reviewed upon direct appeal.” Commonwealth v. Holmes, 79 A.3d 562,

576 (Pa. 2013) (footnote omitted); Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). There are three exceptions to the general deferral rule.4

       The first exception, . . . affords trial courts discretion to entertain
       ineffectiveness claims in extraordinary circumstances where a
       discrete claim of trial counsel ineffectiveness is apparent from the
       record and meritorious to the extent that immediate consideration
       best serves the interests of justice.                    The second
       exception . . . gives    trial   courts     discretion    to   address
       ineffectiveness claims on post-sentence motions and direct appeal
       if there is good cause shown and the defendant knowingly and
       expressly waives his entitlement to seek subsequent PCRA review
       of his conviction and sentence.
____________________________________________


4 In Commonwealth v. O'Berg, 880 A.2d 597, 602 (Pa. 2005), our Supreme
Court declined to recognize a categorical exception to Grant’s general deferral
rule, which would have permitted defendants with short sentences who
possibly would be ineligible for PCRA review because they would no longer be
in custody or under supervision, to present ineffectiveness claims on direct
appeal.

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Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018) (citations

omitted). The third exception, which was adopted by our Supreme Court in

Delgros, requires “trial courts to address claims challenging trial counsel’s

performance where the defendant is statutorily precluded from obtaining

subsequent PCRA review.” Id. at 361.

      Because none of the exceptions to Grant apply in the instant case,

Appellant’s ineffectiveness claim must be deferred to collateral review. For

this reason, Appellant’s third issue lacks merit, too.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/19




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