J-S14021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FRANK J. BROWN                             :
                                               :   No. 1524 EDA 2017
                       Appellant               :

              Appeal from the PCRA Order Entered April 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009516-2008


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED JUNE 07, 2018

       Frank Brown appeals from the order entered on April 21, 2017, denying

his request for relief under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. We affirm in part, reverse in part, vacate the judgment

of sentence, and remand for resentencing.1

       Brown was charged in 2008 with numerous crimes including aggravated

assault, robbery, and carrying a firearm without a license. The charges

stemmed from a December 2007 gunpoint robbery of a young woman and her

90-year-old grandmother. At his bench trial, Brown testified in his own

defense that he did not know the victims and he was living and working in

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*    Retired Senior Judge assigned to the Superior Court.

1 We deny Brown’s “Motion for Extension of Time to File ‘Reply Brief’ in
Response to the Commonwealth’s Brief Filed on January 29, 2018.”
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South Carolina for a company called Echostar at the time of the robbery. N.T.,

2/1/2010, at 136. He introduced into evidence his pay stubs from Echostar

but none of them showed he was working the week of the attack. Id. at 148,

151. Brown conceded that the pay stubs did not show that he was working on

the specific date of the robbery, but said he believed his attorney had

subpoenaed records from Echostar and Echostar “gave [them] what they

had.” Id. at 149. He also presented as evidence stipulated testimony from

his father that Brown was living with his father in South Carolina from October

2007 through February 2008. Id. at 129, 134.

        On February 1, 2010, the trial court found Brown guilty of two counts

each of the following crimes: aggravated assault, robbery, firearms not to be

carried without a license, unlawful restraint, theft by unlawful taking, receiving

stolen property, terroristic threats, simple assault, recklessly endangering

another person, and false imprisonment.2 He was also found guilty of one

count each of carrying firearms on public streets or public property in

Philadelphia and possession of an instrument of crime.3 On March 18, 2010,

the trial court sentenced Brown to an aggregate term of seven to 14 years’

incarceration, followed by 15 years’ reporting probation. The court imposed

sentence on the charges of robbery and aggravated assault pursuant to the

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218 Pa.C.S.A. §§ 2702(a), 3701(a)(1)(ii), 6106(a)(1), 2902(a)(1), 3921(a),
3925(a), 2706(a)(1), 2701(a), 2705, and 2903(a), respectively.

3   18 Pa.C.S.A. §§ 6108 and 907(a), respectively.



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mandatory minimum sentence for possession or control of a firearm at the

time of the offense. See 42 Pa.C.S.A. § 9712 (held unconstitutional under

Alleyne4 by Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa.Super.

2014)).

       Brown filed a post-sentence motion, which the trial court denied on May

20, 2010. He later filed a nunc pro tunc direct appeal. This Court affirmed his

judgment of sentence on January 9, 2015, and the Pennsylvania Supreme

Court denied allowance of appeal on July 15, 2015. See Commonwealth v.

Brown, 118 A.3d 441 (Pa.Super.) (unpublished memorandum), appeal

denied, 118 A.3d 1107 (Pa. 2015). He did not seek certiorari in the United

States Supreme Court. Brown’s direct appeal did not challenge his mandatory

minimum sentence.

       Brown filed a timely pro se PCRA petition on August 18, 2015, followed

by an amended pro se petition. The amended petition raised four claims for

relief: (1) prosecutorial misconduct/suppression of material evidence; (2)

after-discovered exculpatory evidence; (3) ineffective assistance of counsel;

and (4) an illegal sentence under Alleyne. Brown’s Amended PCRA Petition,

7/13/16, at 12-22. In support of his after-discovered evidence claim, Brown

alleged that on June 15, 2015, he obtained a 2008 Wage Summary and

Employee Check Register (“Wage Summary”) that the Commonwealth and his

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4 Alleyne v. United States, 570 U.S. 99, 103 (2013) (holding that any facts
leading to an increase in a mandatory minimum sentence are elements of the
crime that the Commonwealth must prove at trial beyond a reasonable doubt).

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attorney failed to provide him during the course of discovery and/or trial. Id.

at 13. Brown claimed that these documents showed that he was working in

South Carolina on the date of the robbery and therefore he was not the

individual who committed the crime. Id. at 14.

        The court appointed PCRA counsel, who filed a Finley5 letter and a

Petition to Withdraw as counsel. Counsel sent a copy of the Finley letter to

Brown on January 7, 2017, but did not serve Brown with a copy of the filed

Finley letter or the Petition to Withdraw, both of which were filed with the

court on January 12, 2017. The Finley letter did not address Brown’s Alleyne

claim. The PCRA court subsequently sent a Pa.R.Crim.P. 907 notice to Brown

that it intended to dismiss his petition without a hearing. The notice stated

that the issues raised lacked merit. See Rule 907 Notice, 3/10/2017. The

PCRA court later dismissed the petition on April 21, 2017 and granted

counsel’s Petition to Withdraw. Brown filed a timely pro se Notice of Appeal.

        On May 26, 2017, the PCRA court filed a Pa.R.A.P. 1925(a) opinion that

only addressed Brown’s claims of ineffective assistance of counsel and after-

discovered evidence – it did not mention his Alleyne claim. The PCRA court

opined that Brown’s evidence was not after-discovered evidence because

Brown’s defense counsel partially used the evidence at trial. Additionally, the

PCRA court concluded that neither trial nor appellate counsel had been

ineffective.
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5   Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.Super. 1988) (en banc).


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      On appeal, Brown presents five issues:

      I.     The PCRA court erred when the Honorable Anne Marie B.
             Coyle concluded that [Brown’s] after-discovered evidence
             had been previously obtained, reviewed and utilized at trial,
             which, is not supported by the record.

      II.    The PCRA court erred in concluding that there were no
             genuine issues of material fact and in denying relief without
             a hearing.

      III.   The PCRA court erred by failing to correct [Brown’s] illegal
             sentence.

      IV.    [Brown’s] PCRA counsel was ineffective and erred by not
             pursuing [Brown’s] claims based on after-discovered
             exculpatory evidence.

      V.     The PCRA court and [Brown’s] PCRA counsel committed
             harmful error when they failed to serve [Brown] with a copy
             of the “Finley Letter”, the “[Petition] to Withdraw as
             Counsel”, and the PCRA “Dismissal Order”.

Brown’s Br. at 5.

      We address Brown’s last issue first: that PCRA counsel was ineffective

for failing to serve him with a copy of the Finley letter and counsel’s Petition

to Withdraw, and that the PCRA court committed reversible error by failing to

serve him with the dismissal order. Brown’s Br. at 25.

      Brown claims that counsel failed to send him the Finley letter and

counsel’s Petition to Withdraw. Brown waived these claims by failing to raise

them in response to the Rule 907 notice. See Commonwealth v. Pitts, 981

A.2d 875, 880 n.4 (Pa. 2009). Further, even if Brown had not waived these

claims, we would conclude that they lacked merit.



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      The certified record contains a letter, dated January 7, 2017, that PCRA

counsel sent to Brown. The letter informs Brown that counsel could not find

any non-frivolous issues to raise on appeal. The letter included a copy of the

Finley letter and gave Brown advice on how to proceed if the court issued

Rule 907 notice:

      Enclosed please find a Finley Letter that I have drafted in your
      case. I simply cannot find any issue of arguable merit to be raised.
      The Finley Letter is self-explanatory. After receiving the 907, you
      could write to the Court and explain why you believe that you were
      correct and I am incorrect. If you choose not to write to the Court
      after the 907, you do not give up your right to appeal. However,
      you could simply wait for your Petition to be dismissed and at that
      time you can take an appeal to the Superior Court. When you get
      the final dismissal you would have to file a Notice of Appeal within
      30 days with the Superior Court of Pennsylvania.

PCRA Counsel Letter, 1/7/17 at 1.

      As the PCRA court concluded, counsel timely forwarded the above

correspondence to Brown giving appropriate notice of his determination of no

merit under Finley. See PCRA Court Opinion, filed 5/26/17, at 4; see also

Wreck, 931 A.2d at 721 (stating a copy of Finley letter must be sent to

defendant). Moreover, Brown does not explain how his alleged failure to

receive counsel’s Petition to Withdraw or Finley letter prejudiced him. As

such, these claims are meritless.

      Brown’s claim that he is entitled to relief because the court did not send

notice of the order dismissing his PCRA petition is likewise meritless. Notice

must be given to a defendant when the PCRA court denies a PCRA petition

without a hearing. See Pa.R.Crim.P. 114. Here, both the trial court docket and

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the order itself are silent as to whether the court sent notice of the dismissal

order to Brown. Despite claiming he did not receive the dismissal order, Brown

nonetheless filed a timely notice of appeal. As such, even if the court did not

properly serve him, he suffered no prejudice. See Commonwealth v. Bond,

630 A.2d 1281, 1283 (Pa.Super. 1993) (stating that even if court had failed

to serve dismissal order on defendant, defendant suffered no prejudice where

defendant was able to file timely appeal).

      We now address Brown’s claim that the PCRA court erred in denying him

relief for his claim of after-discovered evidence. When we review an order

denying PCRA relief, we ask “whether the record supports the PCRA court’s

determination and whether the PCRA court’s decision is free of legal error.”

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014). A petitioner may

seek post-conviction relief for a claim of after-discovered evidence by pleading

and proving by a preponderance of the evidence that:          (1) the petitioner

acquired the evidence after trial and could not have obtained it through

reasonable diligence at or prior to trial; (2) the evidence is not cumulative;

(3) it is not being used solely to impeach credibility; and (4) it would likely

compel a different verdict. Commonwealth v. Foreman, 55 A.3d 532, 537

(Pa.Super. 2012). If the petitioner fails to establish any of these elements, the

after-discovered evidence claim fails and we need not analyze the remaining

elements. Commonwealth v. Pagan, 950 A.2d 270, 292-93 (Pa. 2008).




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      Brown contends that the PCRA court erred in concluding that the Wage

Summary that he received on June 15, 2015, was not after-discovered

evidence. Brown’s Br. at 11. Brown admits that some of the information in

the Wage Summary is included in the pay stubs and time cards that he

presented at trial. Id. at 12.    Brown also admits that had trial counsel

conducted a reasonably thorough pre-trial investigation, counsel would have

discovered the Wage Summary at the time - i.e., before trial. Id. at 13.

      Brown’s PCRA petition failed to set forth a claim for relief for after-

discovered evidence because he concedes that reasonable diligence would

have revealed the Wage Summary prior to trial. Thus, the PCRA court properly

dismissed this claim. Additionally, because the PCRA petition failed to state a

claim, the PCRA court did not err in denying the petition without holding an

evidentiary hearing. See Commonwealth v. Williams, 153 A.3d 372, 378-

79 (Pa.Super. 2016) (holding that appellant’s alleged after-discovered

evidence was cumulative and therefore he was not entitled to evidentiary

hearing).

      Brown next contends that PCRA counsel was ineffective for failing to

pursue his after-discovered evidence claim, instead of filing a Finley letter.

Brown waived his claim of ineffective assistance of PCRA counsel because he

did does not raise the claim in the PCRA court in response to a Rule 907 notice.

See Commonwealth v. Smith, 121 A.3d 1049, 1056 (Pa.Super. 2015)

(holding that defendant waived his right to raise claims of ineffective


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assistance of PCRA counsel by not responding to Rule 907 notice). Even if this

claimed had not be waived, the claim is meritless.

      “To prove counsel's ineffectiveness, appellant must demonstrate: (1)

the underlying claim is of arguable merit; (2) counsel's performance lacked a

reasonable basis; and (3) the ineffectiveness of counsel caused him

prejudice.” Commonwealth v. Williams, 899 A.2d 1060, 1063 (Pa. 2006).

Failing to prove any of the above prongs will “defeat an ineffectiveness claim.”

Id. Here, Brown’s claim fails because his underlying claim of after-discovered

evidence lacks merit. See Commonwealth v. Jones, 811 A.2d 994, 1005

(Pa. 2002) (stating that counsel cannot be ineffective for failing to raise a

meritless claim).

      Last, we address Brown’s claim that the PCRA court erred in failing to

correct his sentence, which was illegal under Alleyne. Brown’s Br. at 21. Even

though Brown raised the issue in his pro se PCRA petition, neither the PCRA

court nor Brown’s counsel addressed it. However, we may raise the issue sua

sponte, as the issue relates to the legality of Brown’s sentence. See

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super. 2014) (concluding

court may raise challenges to an illegal sentence sua sponte). Our scope of

review is plenary and our standard of review is de novo for a claim alleging

illegal sentencing. Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa.Super.

2011).




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       Although Alleyne does not apply retroactively to cases on collateral

review,6 a petitioner may claim relief for an illegal sentence under Alleyne in

a timely PCRA petition so long as the judgment of sentence was not final when

Alleyne was decided. Commonwealth v. DiMatteo, 177 A.3d 182, 191 (Pa.

2018).

       The Commonwealth concedes that Alleyne applies here and requires

vacating Brown’s sentence and remanding for resentencing. Commonwealth’s

Br. at 11-12. We agree. Brown’s judgment of sentence became final on

October 13, 2015,7 after Alleyne was decided, and he therefore may claim

relief. Since Brown was sentenced to a mandatory minimum sentence for the

charges of robbery and aggravated assault pursuant to 42 Pa.C.S.A. § 9712,

we vacate the judgment of sentence and remand for resentencing. See

Valentine, 101 A.3d at 812; see also Commonwealth v. Cole, 135 A.3d

191, 196 (Pa.Super. 2016) (remanding for resentencing where appellant was

sentenced to mandatory minimum pursuant to Section 9712).




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6   Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

7 See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super. 2002)
(holding that one year period to file PCRA petition began to run 90 days after
Pennsylvania Supreme Court denied petition for allowance of appeal following
reinstatement of appellate rights nunc pro tunc, where petitioner failed to seek
review of conviction by United States Supreme Court).

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     Order reversed in part, affirmed in part. Judgment of sentence vacated.

Case remanded for resentencing. Counsel is to be appointed to Brown for

purposes of the new sentencing hearing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/18




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