J-S75017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ANDREW BROWN

                            Appellant                      No. 119 EDA 2014


                Appeal from the PCRA Order December 11, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002218-2005


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MARCH 30, 2015

        Andrew Brown appeals from the order of the Court of Common Pleas

of Delaware County dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”).1               Additionally, Brown’s counsel seeks

permission to withdraw from representation.               Upon review, we grant

counsel’s petition to withdraw and affirm the order of the PCRA court.

        This matter arises from a fatal shooting in the city of Chester on

September 15, 2004. On October 27, 2006, a jury convicted Brown of first-

degree murder.2 On December 5, 2006, the court sentenced Brown to life in

prison without parole. On December 10, 2009, this Court affirmed Brown’s

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2505(a).
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judgment of sentence.         See Commonwealth v. Brown, No. 2347 EDA

2008 (Pa. Super. 2009) (unpublished memorandum). Brown did not file a

petition for allowance of appeal with our Supreme Court.

       On January 28 2010, Brown filed a pro se PCRA petition. On May 10,

2010, Brown’s trial counsel filed an application to withdraw his appearance.

On October 27, 2010, the court permitted counsel to withdraw, and

appointed Scott D. Galloway, Esquire, as new counsel for Brown. Attorney

Galloway filed an amended petition on February 3, 2012, and, on December

11, 2013, the PCRA court dismissed the petition.

       On January 9, 2014, Brown filed the instant appeal.          Thereafter, on

September 8, 2014, Attorney Galloway filed a Turner/Finley3 no-merit

letter and a petition to withdraw.             In response, on November 21, 2014,

Brown filed an application for relief to file a pro se brief in support of the

merits of his claims.       We granted Brown’s request on February 6, 2015.

Thereafter, Brown requested an extension of time to file his pro se brief.

This Court granted a fifteen-day extension on March 2, 2015. As of March

17, 2015, Brown has yet to file his pro se brief. Accordingly, we will review

Attorney Galloway’s Turney/Finley letter brief for the issues Brown wishes

to raise on appeal.



____________________________________________


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      However, before considering the issues Attorney Galloway asserts

Brown wishes to raise on appeal, we first must consider whether counsel has

complied with the requirements of Turner/Finley.          We previously have

explained this procedure as follows:

      Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the
      nature and extent of counsel’s diligent review of the case, listing
      the issues which the petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no-
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed
      pro se or by new counsel.

      If counsel fails to satisfy the foregoing technical prerequisites of
      Turner/Finley, the court will not reach the merits of the
      underlying claims but, rather, will merely deny counsel’s request
      to withdraw. Upon doing so, the court will then take appropriate
      steps, such as directing counsel to file a proper Turner/Finley
      request or an advocate’s brief.

      However, where counsel submits a petition and no-merit letter
      that do satisfy the technical demands of Turner/Finley, the
      court - trial court or this Court - must then conduct its own
      review of the merits of the case. If the court agrees with
      counsel that the claims are without merit, the court will permit
      counsel to withdraw and deny relief. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

      Attorney Galloway’s letter brief indicates that he examined the record,

case law, and all relevant statutes; that he discussed the case with Brown;

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and that after examining whether any claims were available to Brown,

counsel explained why he believed Brown’s issues lacked merit.        Attorney

Galloway mailed copies of his Turner/Finley letter brief and petition to

withdraw to Brown, and advised Brown of his right to proceed pro se or

through privately-retained counsel. Accordingly, we conclude that Attorney

Galloway has substantially complied with the mandates of Turner and

Finley, and we proceed with our review of the merits of Brown’s claims.

     According to counsel, Brown wishes to raise the following issues for

our review:

     1. Was Brown denied effective assistance of counsel in that his
        Attorney had a conflict of interest as to representation?

     2. Was trial counsel ineffective for failing to file a motion as to
        the suppression of certain statements made by Brown?

     3. Was trial counsel ineffective for failing to file a motion as to
        the disclosure of statements and identity of confidential
        informants?

     4. Was trial counsel ineffective for failing to object to statements
        made during the District Attorney’s closing argument?

     5. Was trial counsel ineffective for moving for the sequestration
        of Detective Todd Nuttall?

     6. Was trial counsel ineffective for failing to request of the court
        a jury instruction as to voluntary manslaughter?

Turner/Finley letter, 9/8/14 at 2-3.

     We review an order dismissing a petition under the PCRA in the
     light most favorable to the prevailing party at the PCRA level.
     This review is limited to the findings of the PCRA court and the
     evidence of record. We will not disturb a PCRA court’s ruling if it
     is supported by evidence of record and is free of legal error.
     This Court may affirm a PCRA court’s decision on any grounds if
     the record supports it. Further, we grant great deference to the

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        factual findings of the PCRA court and will not disturb those
        findings unless they have no support in the record. However, we
        afford no such deference to its legal conclusions. Where the
        petitioner raises questions of law, our standard of review is de
        novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations and quotations omitted).         Brown’s issues on appeal implicate the

effectiveness of trial counsel.

        Counsel is presumed effective and will only be deemed
        ineffective if the petitioner demonstrates that counsel’s
        performance was deficient and he was prejudiced by that
        deficient performance. Prejudice is established if there is a
        reasonable probability that, but for counsel's errors, the result of
        the proceeding would have been different.            A reasonable
        probability is a probability sufficient to undermine confidence in
        the outcome.

        To properly plead ineffective assistance of counsel, a petitioner
        must plead and prove:        (1) that the underlying issue has
        arguable merit; (2) counsel’s actions lacked an objective
        reasonable basis; and (3) actual prejudice resulted from
        counsel’s act or failure to act. If a petitioner fails to plead or
        meet any elements of the above-cited test, his claim must fail.

Id. at 1195.

        In his first issue, Brown argues that trial counsel was ineffective

because he had a conflict of interest in representing Brown.         Specifically,

Brown claims that counsel served as a Juvenile Master in a matter involving

Brown and, because of this, Brown was prejudiced.            Brown relies on 42

Pa.C.S. § 25024 to support his claim that counsel was prohibited from
____________________________________________


4
    The statute provides:
        (a)   General Rule. Except as otherwise prescribed by general
              rule, an attorney at law who is an employee of a court
(Footnote Continued Next Page)


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appearing in the Delaware County Court of Common Pleas. Our standard of

review is well-settled.

      Absent an abuse of discretion, we are constrained to accept the
      trial court’s finding that there was no conflict of interest. A
      prosecution is barred when an actual conflict of interest affecting
      the prosecutor exists in the case; under such circumstances a
      defendant need not prove actual prejudice in order to require
      that the conflict be removed. Mere allegations of a conflict of
      interest, however, are insufficient to require replacement of a
      district attorney.

Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa. Super. 2000)

(internal quotations and citations omitted).       Furthermore, an appellant

cannot prevail on a preserved conflict of interest claim absent a showing of

actual prejudice. Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa.

2012).

      Initially, we note that Section 2502 only prohibited counsel from

appearing before the Delaware County Juvenile Court.         See 42 Pa.C.S. §

2502; see also Pa.R.J.C.P. 185(b) (“Masters shall not engage in practice

before the juvenile court in the same judicial district where they preside over

juvenile matters.”). Additionally, Brown does not allege any specific act or

omission showing that trial counsel had a conflict of interest. In fact, when

                       _______________________
(Footnote Continued)

             shall not appear as counsel in such court. An attorney at
             law shall not appear in any court or in any matter in
             violation of any general rule relating to the practice of law
             or the conduct of courts, magisterial district judges and
             officers serving process or enforcing orders of the court.
   42 Pa.C.S. § 2502.



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asked whether Brown was aware that trial counsel had served as a juvenile

master in a matter involving him, Brown answered that he was aware and

that he wanted trial counsel as his attorney. N.T. Trial, 10/24/06, at 25-26.

Because section 2502 permitted counsel to appear in the Delaware County

Court of Common Pleas and Brown merely alleges a conflict of interest, we

find this claim meritless. Stafford, supra.

        In his second issue, Brown claims that trial counsel was ineffective for

failing to file a motion to suppress two statements made by Brown to the

police.   Brown asserts that the statements were involuntary and illegally

obtained.

        The   constitutional    test   for     voluntariness   concerns   whether   the

interrogation was so manipulative or coercive that it deprived the defendant

of his ability to make a free and unconstrained decision to confess.

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998). The question

is, “whether, under the totality of the circumstances, the challenged

confession was obtained in a manner compatible with the requirements of

the Constitution.” Miller v. Fenton, 474 U.S. 104, 112 (1985).

        Here, Detective Nuttall and Brown both testified that, as a result of the

interrogation about the murder, Brown signed two statements of confession.

Prior to the interrogation, Detective Nuttall read Brown his Miranda5 rights


____________________________________________


5
    Miranda v. Arizona, 384 U.S. 436 (1966).



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and completed the City of Chester Police Department Statement of Rights

Waiver Form with Brown.      N.T. Trial, 10/26/06, at 59.    Detective Nuttall

testified that Brown indicated his understanding and signed the form, which

was entered into evidence. Id. at 61. Detective Nuttall further testified that

he did not force, coerce, or induce Brown to sign or write the statements.

Id. at 81, 85.     The jury, who had received an instruction regarding

voluntariness, found Detective Nuttall’s testimony credible and concluded

that the confession was voluntary. The PCRA court affirmed this credibility

determination and, because it is supported by the record, we will not disturb

it. Ford, supra.

      In his third issue, Brown asserts that trial counsel was ineffective for

failing to file a motion requesting the disclosure of statements and identities

of confidential informants. The Commonwealth has a qualified privilege to

withhold the identity of a confidential informant.       Commonwealth v.

Marsh, 997 A.2d 318, 321 (Pa. 2010).         To overcome the privilege and

obtain a confidential informant’s identity, a defendant must first establish

that the information sought is material to the preparation of the defense and

that the request is reasonable. Id.; see also Pa.R.Crim.P. 573(B)(2)(a)(i).

      In its opinion, the PCRA court addressed this claim and concluded that

it lacked merit because Brown did not present any evidence that the

informants’ statements or identities were material to his case. PCRA Court

Opinion, 7/21/14, at 7. We agree with the PCRA court’s conclusion that trial

counsel did not render ineffective assistance when he failed to file a motion

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requesting the disclosure of the statements and identities of certain

confidential informants.

      In his fourth issue, Brown argues that trial counsel was ineffective for

failing to object to several instances of prosecutorial misconduct during

closing argument. Specifically, Brown alleges that the prosecutor’s comment

that defense counsel was trying to obscure the facts by creating a “a web of

confusion,” N.T. Trial, 10/27/06, at 80, as well the prosecutor’s vouching for

a witness and characterization of Brown as a killer constituted prosecutorial

misconduct.

      Prosecutorial misconduct will be found if the argument results in

prejudice to the defendant. It does so when:

      [T]he unavoidable effect of the comments at issue was to
      prejudice the jurors by forming in their minds a fixed bias and
      hostility toward the defendant, thus impeding their ability to
      weigh the evidence objectively and render a true verdict. Due to
      the nature of a criminal trial, both sides must be allowed
      reasonable latitude in presenting their cases to the jury.
      Prosecutorial misconduct will not be found where comments
      made were done for oratorical flair.

Commonwealth v. Miller, 897 A.2d 1281, 1291 (Pa. Super. 2006).

      Upon our review of the trial transcript, we agree with the PCRA court

that the prosecutor’s statements were grounded in the record, not in his own

personal judgment. PCRA Court Opinion, 7/21/14, at 7; see also N.T. Trial,

10/27/06, at 87-89.        Additionally, Brown fails to demonstrate how the

prosecutor’s comments were more than oratorical flair and whether they

prejudiced the jurors. Accordingly, we discern no prosecutorial misconduct.


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Miller, supra.    Because trial counsel cannot be deemed ineffective for

failing to make baseless objections, we find this claim meritless.

      In his fifth issue, Brown argues that trial counsel was ineffective for

failing to object to the prosecutor’s unethical conduct when he spoke to

Detective Nuttall regarding his testimony during a recess.

      A defendant is not entitled to relief for a claim of prosecutorial
      misconduct unless the unavoidable effect of the prosecutor’s
      actions is to prejudice the jury so that a true verdict cannot be
      rendered because the existence of bias and hostility makes it
      impossible to weigh the evidence in a neutral manner.

Commonwealth v. Hill, 666 A.2d 642, 647 (Pa. 1995).

      Again, we discern no prosecutorial misconduct that would entitle

Brown to relief. Id. Detective Nuttall was not sequestered and the court did

not prohibit him from speaking with the prosecutor. Nor does Brown allege

how the conversation prejudiced the jury.      Accordingly, this claim is also

meritless.

      In his final issue, Brown asserts that trial counsel was ineffective for

failing to request a jury instruction on the lesser offense of voluntary

manslaughter. Voluntary manslaughter is defined as:

      A person who kills an individual without lawful justification
      commits voluntary manslaughter if at the time of the killing he is
      under sudden and intense passion resulting from serious
      provocation by: (1) the individual killed; or (2) another whom
      the actor endeavors to kill, but he negligently or accidentally
      causes the death of the individual killed.

18 Pa.C.S. § 2503.




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      We agree with the PCRA court that there was insufficient evidence

introduced at trial to warrant an instruction for voluntary manslaughter.

Additionally, Brown would not have been entitled to the instruction because

the victim’s conduct, a slap, did not constitute a “serious provocation.” See

Commonwealth v. Sheppard, 648 A.2d 563, 566 (Pa. Super. 1994).

Because trial counsel cannot be deemed ineffective for failing to request an

instruction Brown was not entitled to, this claim is also meritless.

      For the foregoing reasons, we find Brown’s claims of ineffective

assistance of counsel to fail. Ford, supra. Accordingly, we affirm the order

of the PCRA court dismissing Brown’s PCRA petition.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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