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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DONTE A. BROWN                             :
                                               :
                      Appellant                :   No. 1807 EDA 2017

                    Appeal from the PCRA Order May 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001248-2011


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                             FILED JANUARY 18, 2018

        Donte A. Brown (“Appellant”) appeals from the order denying his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541–9546. We affirm.

        We rely on the PCRA court’s statement of the underlying facts and

procedural history.      PCRA Court Opinion, 8/10/17, at 1–2.      In summary,

following a nonjury trial, Appellant was convicted of multiple firearm

violations1 resulting from a traffic stop of the Crown Victoria Appellant was

driving on December 4, 2010.              The trial court sentenced Appellant to

incarceration for an aggregate term of eight years and nine months to

seventeen years followed by five years of probation. Order, 9/27/12. We
____________________________________________


1    18 Pa.C.S. §§ 6105, 6106, 6106.1, and 6108.
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affirmed Appellant’s judgment of sentence. Commonwealth v. Brown, __

A.3d ___, 2809 EDA 2012          (Pa. Super. filed November      12, 2013)

(unpublished memorandum).         Appellant did not seek review in the

Pennsylvania Supreme Court.

     The PCRA court has provided the subsequent procedural history:

            On July 7, 2014, [Appellant] filed a pro se [PCRA] petition
     alleging ineffective assistance of counsel. On February 4, 2016,
     PCRA counsel filed an Amended PCRA Petition. On April 10,
     2017, [the PCRA c]ourt issued a notice of intent to deny
     [Appellant’s] PCRA pursuant to Pa. R. Crim. P. 907. [The PCRA
     c]ourt denied the PCRA petition on May 22, 2017. On June 10,
     2017, [Appellant] filed a Notice of Appeal to the Superior Court
     of Pennsylvania.

PCRA Court Opinion, 8/10/17, at 2–3.      The PCRA court issued an order

pursuant to Pa.R.A.P. 1925(b), requiring Appellant to file a concise

statement of errors complained of on appeal within twenty-one days. The

Commonwealth points out that Appellant “filed his court ordered Rule

1925(b) statement late, after the PCRA court had issued its Opinion in this

matter.   However, as the PCRA court addressed [Appellant’s] claims, no

remand is necessary.    Commonwealth v. Blauser, 166 A.3d 428, 430 n.3

(Pa. Super. 2017).”    Commonwealth’s Brief at 5 n.2.      We agree.      See

Commonwealth v. Stephen Brown, 145 A.3d 184, 186 (Pa. Super. 2016),

appeal denied, 165 A.3d 892 (Pa. 2017) (“Instantly, the trial court has

addressed the issue raised in Brown’s untimely Rule 1925(b) statement and,

as such, we may address the issue on its merits.”).

     Appellant presents two questions for our consideration:

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      I.    Should the PCRA court’s order dismissing [Appellant’s]
            PCRA petition without an evidentiary hearing be reversed
            and a new trial or evidentiary hearing b[e] granted on the
            ground that counsel was ineffective for failing to call two
            exculpatory witnesses at trial?

      II.   Should the PCRA court’s order dismissing [Appellant’s]
            PCRA [p]etition without an evidentiary hearing be reversed
            and a new trial or evidentiary hearing be granted on the
            ground that trial counsel was ineffective for failing to
            obtain available schematics of the vehicle in question?

Appellant’s Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).      Moreover, “[t]here is no absolute right to an

evidentiary hearing on a PCRA petition, and if the PCRA court can determine

from the record that no genuine issues of material fact exist, then a hearing

is not necessary.”    Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa.


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Super. 2003)). “[S]uch a decision is within the discretion of the PCRA court

and will not be overturned absent an abuse of discretion.” Commonwealth

v. Mason, 130 A.3d 601, 617 (Pa. 2015).

     Appellant’s issues challenge the effective assistance of his trial

counsel. Pennsylvania jurists presume that a PCRA petitioner’s counsel was

effective, unless the petitioner proves otherwise.     Commonwealth v.

Williams, 732 A.2d 1167, 1177 (Pa. 1999).      We are bound by the PCRA

court’s credibility determinations where there is support for them in the

record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)

(citation omitted). Furthermore, claims of ineffective assistance of counsel

are not self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa.

2002).   Consequently, our Supreme Court has explained that, in order to

succeed on a claim of ineffective assistance of counsel, an appellant must

demonstrate (1) that the underlying claim is of arguable merit; (2) that

counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

     We reiterate that trial counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).   Moreover, trial counsel’s approach must be

“so unreasonable that no competent lawyer would have chosen it.”

Commonwealth v. Ervin, 766 A.2d 859, 862–863 (Pa. Super. 2000)


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(quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa. 1981)). Our

Supreme Court has defined “reasonableness” as follows:

      Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth v. Maroney, 235 A.2d 349, 352 (Pa. 1967)) (emphasis in

original; footnote omitted). Finally, prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citation omitted).

      Appellant first complains that trial counsel did not call two exculpatory

witnesses, Jeremy Grant and James Love. Appellant’s Brief at 8. We have

stated:

      [T]rial counsel will not be deemed ineffective for failing to call a
      witness to testify unless the PCRA petition demonstrates: (1) the
      witness existed; (2) the witness was available; (3) counsel knew
      of, or should have known of the existence of the witness; (4) the
      witness was willing to testify for the defense; and (5) the
      absence of the testimony was so prejudicial to petitioner to have
      denied him or her a fair trial.


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Commonwealth v. Charles Brown, 18 A.3d 1147, 1160–1161 (Pa. Super.

2011). “Ineffectiveness for failing to call a witness will not be found where a

defendant fails to provide affidavits from the alleged witnesses indicating

availability   and   willingness    to     cooperate    with    the    defense.”

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

      Here, the arresting officer, Officer Michael Blatchford, testified at trial

that “[w]hen he shone his flashlight into the car’s passenger compartment,

he immediately saw the butt of a black Beretta gun between the driver and

the center console. N.T., 7/26/12, at 9. The gun was one inch away from

Appellant’s body but not attached to his hip. Id. at 9, 15.” Brown, 2809

EDA 2012 (unpublished memorandum at *1).               According to Appellant,

Jeremy Grant, who also testified at the suppression hearing, would have

testified at trial that Officer Blatchford found the firearm in the car’s trunk;

James Love, who was not an eyewitness to the traffic stop, would have

testified that the vehicle belonged to him and that it did not have a center

console.   Appellant’s Brief at 5–6.     In support of his argument, Appellant

attached an affidavit from each witness to his PCRA petition.          Amended

PCRA Petition, 2/4/16, at Exhibits A and B.       Thus, Appellant argues, trial

counsel:

      was clearly aware of the presence of both Jeremy Grant and
      James Love. Indeed, Mr. Grant had previously testified as a
      defense witness at the Motion to Suppress. Further, both men
      were available and willing to testify. Finally, [Appellant] was
      clearly prejudiced by counsel’s failure to present these witnesses


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      since their testimony would have directly contradicted the
      testimony of the arresting officer.

Appellant’s Brief at 9.

      In response, the Commonwealth argues that trial counsel “had a

reasonable basis for not calling Grant or Love to testify at trial.”

Commonwealth’s Brief at 9.        According to the Commonwealth, defense

counsel’s suppression strategy of establishing that Officer Blatchford

fabricated   his   testimony   about   the   location of the   firearm   “proved

unpersuasive as the court credited the officer’s testimony, in spite of the

evidence that he might have been mistaken about whether the car had a

‘center console.’” Id. at 10. Consequently, the Commonwealth continues,

defense counsel presented a new theory at trial, establishing that the other

occupants of the vehicle had access to the firearm, “there was no fingerprint

or DNA evidence tying [Appellant] to the gun, and . . . the gun was not

registered to [Appellant].” Id. at 11. The Commonwealth concludes, “[I]t

was certainly reasonable for trial counsel to employ a strategy that focused

on whether the Commonwealth had proved that [Appellant] possessed the

firearm in question, rather than attempting to resurrect a tenuous theory

that had already failed.” Id. at 12.

      The PCRA court explained why Appellant’s first ineffective-assistance

claim was “wrong,” PCRA Court Opinion, 8/10/17, at 5, and no hearing was

needed:




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      In order to raise a genuine issue of material fact concerning prior
      counsel’s ineffectiveness, a defendant must present sufficient
      information in his petition to meet all three prongs of the
      ineffectiveness test. In the instant case, [Appellant] cannot
      show that trial counsel’s performance was unreasonable,
      because it is clear from the record that trial counsel reasonably
      chose to discard the strategy used when litigating the failed
      motion to suppress, and instead reasonably employed a new
      strategy that focused on whether the Commonwealth had proved
      that [Appellant] possessed the firearm in question. Because the
      original theory failed at the [motion to suppress] hearing, trial
      counsel was reasonable in not calling two witnesses that would
      have only supported a discarded strategy and distracted [sic]
      from his new trial strategy of trying to prove that the gun did not
      belong to [Appellant].           Therefore, [Appellant] cannot
      demonstrate that counsel was ineffective for failing to call
      Jeremy Grant and James Love as witnesses.

Id. at 5–6 (internal citations omitted).

      Upon review of the evidence in the light most favorable to the

Commonwealth, we find the evidence of record supports the conclusions of

the PCRA court and its ruling is free of legal error. Moreover, we discern no

abuse of the PCRA court’s discretion in determining that no genuine issues of

material fact existed to warrant a hearing. Trial counsel had a reasonable

basis for his decision not to call Jeremy Grant and James Love at trial. His

suppression strategy to undermine Officer Blatchford’s account based on the

questionable credibility of Jeremy Grant and the non-eyewitness statement

of James Love failed; therefore, he developed a new trial strategy based on

uncontested physical facts regarding the location of the firearm and the

absence of Appellant’s fingerprints on or ownership of the firearm. Thus, we

conclude Appellant’s first ineffective-assistance claim does not warrant relief.


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      Appellant’s second complaint is that trial counsel failed to introduce a

technical schematic of a Crown Victoria to demonstrate the absence of a

center console. According to Appellant, the schematic was “readily available

. . . and could have been admitted under the business records exception,

Pa.R.E. 803(6)[,] had an evidentiary hearing been granted.”          Appellant’s

Brief at 9.   Appellant further argues that the schematic “shows the inside

arm of the driver’s seat of the vehicle fitting into a recessed center piece

(part 63100 on the schematic).” Id. at 10; Amended PCRA Petition, 2/4/16,

at Exhibit C. Thus, Appellant claims, he was prejudiced by counsel’s failure

to   introduce   such   evidence   because   it   would   have   proven   “Officer

Blatchford’s testimony to be demonstrably false.” Appellant’s Brief at 10.

      The Commonwealth responds that Appellant failed to demonstrate that

the schematic was admissible and that it actually depicts what he asserts.

Commonwealth’s Brief at 14.        Moreover, the Commonwealth argues that

Appellant failed to prove he was prejudiced by counsel’s failure to introduce

the schematic because “the absence of a center console in the vehicle does

not wholesale negate the officer’s testimony that [Appellant] had a gun in

plain view at his side.” Id. at 15.

      The PCRA court rejected this ineffective-assistance claim for multiple

reasons:

      To begin, [Appellant] failed to prove that the schematic[s] would
      even be admissible, as he did not demonstrate that they were
      authenticated at trial, what expert witness would have been
      called to testify to it, nor how [Appellant] would have overcome

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     the prohibition against using hearsay. See Commonwealth v.
     W.H.M., Jr., 932 A.2d 155, 161 (Pa 2007) (holding that counsel
     was not ineffective for not attempting to introduce inadmissible
     evidence). Further, the schematics do not detail the area in
     between the two seats where a center console would have been.
     Rather, the schematics depict the seats mechanisms. If they
     were deemed admissible, they would have only furthered the
     failed defense strategy already attempted at the suppression
     hearing. Additionally, the absence of a center console would not
     rebut Officer Blatchford’s testimony that a gun was in plain view.
     Therefore, [Appellant] has also failed to prove that counsel was
     ineffective for failing to introduce technical schematics of the
     Crown Victoria.

           Furthermore, the schematics were part of a defense
     strategy that trial counsel reasonably abandoned after it failed at
     the [motion to suppress] hearing. At that hearing, trial counsel
     questioned Officer Blatchford concerning the center console, and
     introduced a photo of a different Crown Victoria where no
     console was present. [The trial court] was not persuaded,
     instead crediting the Officer’s testimony in spite of the evidence
     that the car may have lacked a center console and denied the
     motion to suppress. Therefore, [Appellant] cannot demonstrate
     that counsel was unreasonable for deciding not to introduce the
     schematics at trial.

PCRA Court Opinion, 8/10/17, at 6–7.

     Upon review of the evidence in the light most favorable to the

Commonwealth, we find the evidence of record supports the conclusions of

the PCRA court and its ruling is free of legal error. Moreover, we discern no

abuse of the PCRA court’s discretion in determining that no genuine issues of

material fact existed to warrant a hearing.    Appellant did not establish a

reasonable probability that the outcome of his trial would have been

different but for defense counsel’s failure to introduce a schematic of the

Crown Victoria.    Pierce, 786 A.2d at 213.        The trial court credited


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Officer Blatchford’s testimony that he saw the firearm in plain view next to

Appellant; we will not substitute the trial court’s credibility determination

with our own.       See Commonwealth v. Chine, 40 A.3d 1239, 1244 (Pa.

Super. 2012) (“This Court shall not undertake to reassess credibility of

witnesses, as it is well settled that we cannot substitute our judgment for

that of the trier of fact.”).    Furthermore, contrary to Appellant’s assertion,

the schematic does not detail the area between the two front seats.

Amended PCRA Petition, 2/4/16, at Exhibit C.           Finally, although Appellant

argues the schematic would have been admissible as a business record

pursuant to Pa.R.E. 803(6), he did not plead or prove in his petition how he

would have authenticated the schematic at trial.          For these reasons, we

conclude Appellant’s second ineffective assistance claim does not warrant

relief.

          Finally, we note that this case presents an illegality-of-sentence issue.

“[T]his Court is endowed with the ability to consider an issue of legality of

sentence sua sponte.”        Commonwealth v. Orellana, 86 A.3d 877, 882–

883 n.7 (Pa. Super. 2014) (citation omitted).

          Appellant was convicted of multiple firearm offenses, including carrying

loaded weapons other than firearms, a summary offense pursuant to 18

Pa.C.S. § 6106.1. The trial court sentenced Appellant on the Section 6106.1

conviction to ninety days of total confinement. Order, 9/27/12, at Count 4.




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     Section 9756(c) of the Sentencing Code, pertaining to sentences of

total confinement for summary offenses, provides in relevant part:

     (c) Prohibition of parole for summary offenses.—The court
     may impose a sentence to imprisonment without the right to
     parole under this subsection only when:

           (1) a summary offense is charged;

           (2) sentence is imposed for nonpayment of fines or costs,
           or both, in which case the sentence shall specify the
           number of days to be served; and

           (3) the maximum term or terms of imprisonment imposed
           on one or more indictments to run consecutively or
           concurrently total less than 30 days.

42 Pa.C.S. § 9756(c)(1)–(3).           The plain language of Subsection (c)

authorizes trial courts to impose flat sentences of incarceration for summary

offenses only when the sentence is imposed for nonpayment of fines and/or

costs and the maximum term of incarceration is less than thirty days.

     Here, Appellant’s flat ninety-day sentence for his summary offense of

carrying    loaded   weapons   other    than    firearms   does   not   meet   the

requirements of Subsection (c), and is therefore illegal. Although the trial

court was authorized pursuant to 18 Pa.C.S. § 1105 to impose a sentence of

imprisonment for not more than ninety days on the Section 6106.1

conviction, it lacked authority to impose a flat ninety-day sentence;

therefore, it was required to impose a minimum term of incarceration. See

42 Pa.C.S. § 9756(c)(1).




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     The standard remedy for a trial court’s omission of a minimum

sentence   is   to   vacate   the   judgment   of   sentence   and   remand   for

resentencing. See Commonwealth v. Duda, 831 A.2d 728, 733 (Pa.

Super. 2003). However, under circumstances “where the sentencing court

clearly intended to impose the maximum sentence[,] this Court can amend

the sentence to include a minimum term equal to one-half of the maximum.”

Id. (amending flat sentence to include minimum term of incarceration where

court imposed maximum possible sentence for summary offense) (citing

Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. Super. 1994) (amending

flat sentence to include minimum term of incarceration equal to one-half

maximum under circumstances where sentencing court clearly intended to

impose maximum sentence)).

     In the case at hand, we are confident that the trial court intended to

impose the maximum sentence because it imposed the maximum possible

sentence of incarceration for Appellant’s summary offense. Order, 9/27/12,

at Count 4; 18 Pa.C.S. § 1105. Therefore, we amend Appellant’s ninety-day

sentence to include a minimum term of forty-five days of incarceration.

Duda, 831 A.2d at 733; Cain, 637 A.2d at 659.

     Judgment of sentence amended. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/18




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