J-S49035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

BREON BROWN

                        Appellant                  No. 3583 EDA 2013


            Appeal from the PCRA Order of November 21, 2013
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at Nos: CP-51-CR-0012678-2007 & CP-51-CR-0003471-
                                   2008


BEFORE: OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED NOVEMBER 06, 2014

     Breon Brown appeals from an order dismissing without a hearing his

first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. Brown has also filed a motion for leave to file a supplemental

brief. We affirm the PCRA court’s order and deny Appellant’s motion.

     We assume the parties’ familiarity with the facts.      For a detailed

summary, see our decision on direct appeal.    Commonwealth v. Brown,

23 A.3d 1076, Nos. 827 & 828 EDA 2009, at 1-6 (Pa. Super. filed Jan. 7,

2011) (unpublished memorandum), app. denied, 24 A.3d 863 (Pa. 2011).

For purposes of this appeal, it is sufficient to note that Appellant and two

others were accused of using a firearm to rob two teenagers.           A jury
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convicted Appellant of all charges.1 The jury returned a split verdict for the

first co-defendant and a straight acquittal for the second co-defendant.

Appellant received an aggregate sentence of 7 to 14 years in prison.          We

affirmed the judgment of sentence on direct appeal. In particular, we held

that Appellant waived a challenge to the weight of the evidence supporting

his convictions, because he failed to raise the issue in the trial court. See

Pa.R.Crim.P. 607(A).        Our Supreme Court denied Appellant’s petition for

allowance of appeal.

       Appellant filed a timely first PCRA petition on August 19, 2011. The

PCRA court appointed counsel, who filed an amended petition on May 28,

2013. Appellant raised one issue: a challenge to trial counsel’s effectiveness

for failing to preserve a challenge to the weight of the evidence on direct

review.    After providing Appellant with notice of intention to dismiss, on

November 21, 2013, the PCRA court dismissed Appellant’s petition without a

hearing. This appeal followed.

       In reviewing the propriety of a PCRA court’s order dismissing a
       PCRA petition, we are limited to determining whether the PCRA
       court’s findings are supported by the record and whether the
       order in question is free of legal error. The PCRA court’s findings
       will not be disturbed unless there is no support for the findings in
       the certified record. Moreover, there 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
____________________________________________


1
  Appellant was convicted of two counts of robbery, two counts of criminal
conspiracy, and possessing instruments of crime.           18 Pa.C.S.A.
§§ 3701(a)(1)(ii), 903(a)(1), and 907(a), respectively.



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        fact exist, then a hearing is not necessary. A reviewing court
        must examine the issues raised in the PCRA petition in light of
        the record in order to determine whether the PCRA court erred in
        concluding that there were no genuine issues of material fact
        and in denying relief without an evidentiary hearing.

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008)

(internal    quotations,     citations,   and    alterations   omitted);   see   also

Commonwealth v. Baumhammers, 92 A.3d 708, 726 (Pa. 2014) (“To

obtain reversal of a PCRA court’s summary dismissal of a petition, an

appellant must show that he raised a genuine issue of fact which, if resolved

in his favor, would have entitled him to relief.”).

        On appeal, Appellant advances the sole claim of ineffective assistance

of counsel rejected by the PCRA court.2             To obtain relief on a claim of

ineffective assistance of counsel, a PCRA petitioner must plead and prove

that (1) the underlying claim has arguable merit; (2) no reasonable basis

existed for counsel’s actions or failure to act; and (3) resulting prejudice

such that there is a reasonable probability that the result of the proceedings

would have been different but for counsel’s error.              Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014) (quoting Commonwealth

v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)).               The Supreme Court

recently reiterated that a petitioner must “show actual prejudice; that is,

that counsel’s ineffectiveness was of such magnitude that it could have


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2
    The Commonwealth has not filed an appellee’s brief.



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reasonably had an adverse effect on the outcome of the proceedings.”

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (internal quotation

omitted). Finally, a petitioner must satisfy all three prongs of the test for

ineffectiveness, or the claim must be rejected. Baumhammers, 92 A.3d at

719.

       Turning to this case, Appellant argues that his claim has arguable

merit because he was convicted based on weak, inherently unreliable, and

suggestive identification testimony. Appellant’s Brief at 10-14. He further

argues that police officers may have tampered with evidence.         Id. at 14.

For the same reasons, Appellant claims that he suffered prejudice. Id. He

also contends that trial counsel’s strategy in failing to preserve a challenge

to the weight of the evidence was unreasonable.

       Appellant bore the burden of showing prejudice, i.e., but for trial

counsel’s ineffectiveness, there is a reasonable probability that he would

have received a new trial. He cannot meet that burden.

       In a brief opinion, the PCRA court—i.e., the same judge who presided

at Appellant’s jury trial—found that Appellant would be unable to prove that

he was prejudiced:

       At trial, both [victims] identified [Appellant] as one of the three
       men who had robbed them during their respective incidents.
       [The first victim] testified that seconds before he was robbed, he
       saw a small, dark colored station wagon drive by him and then
       park around the corner. [The first victim] told the jury he saw
       three men get out of the station wagon and walk up to him
       seconds before the three men robbed him. Not only was this
       station wagon owned by [Appellant’s] mother, but [the first
       victim’s] stolen sweatshirt was found inside it according to police

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       who searched the car after the robberies. Also found inside the
       station wagon was a scooter like the one [the second victim] saw
       before he was attacked at gunpoint.

       Because the evidence against [Appellant] was overwhelming, the
       absence of a weight of the evidence claim has no effect. There
       is no reasonable probability that a new trial would have resulted
       if only such a claim [had] been litigated earlier.

PCRA Court Rule 1925(a) Opinion, 2/5/14, at 3-4.

       Had Appellant’s trial counsel preserved a weight-of-the-evidence

challenge, the trial judge would have denied the motion.         In the opinion

quoted above, the trial judge stated that the evidence against Appellant was

“overwhelming.”3       Id.    Thus, there is no probability that the result of a

motion for a new trial would have been different in the trial court.

       On direct appeal, this Court could have reversed the trial judge’s

decision only if “the facts and inferences of record disclose a palpable abuse

of discretion.”     Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa.

2007). “Thus, the trial court’s denial of a motion for a new trial based on a

weight of the evidence claim is the least assailable of its rulings.” Id. For

this reason, Appellant cannot demonstrate a reasonable probability that he


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3
  On direct appeal, Appellant’s trial counsel first raised a challenge to the
weight of the evidence in his Pa.R.A.P. 1925(b) concise statement.
Responding to Appellant’s concise statement, the trial judge found the
challenge to the weight of the evidence waived. Trial Court Rule 1925(a)
Opinion, 2/1/13, at 9-10. In the alternative, the trial judge stated that the
claim was meritless, id., i.e., the trial judge reached the same conclusion on
direct appeal as in this PCRA appeal. Compare id., with PCRA Court Rule
1925(a) Opinion, 2/5/14, at 3-4.



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would have succeeded in his challenge to the weight of the evidence.

Because Appellant is unable to show prejudice, we need not address whether

his claim has arguable merit or whether trial counsel’s strategy was

unreasonable.4 Baumhammers, 92 A.3d at 719.

       Appellant cannot show that he was prejudiced by any alleged

ineffective assistance of trial counsel. Therefore, he failed to raise a genuine

issue of fact that, if resolved in his favor, would entitle him to PCRA relief.

Accordingly, we hold the PCRA court properly dismissed Appellant’s PCRA

petition.

       Finally, we deny Appellant’s Motion for Leave to File Addendum, i.e., a

supplemental brief. In the motion, counsel requests leave to file a

supplemental brief raising a challenge to the legality of Appellant’s sentence

under Alleyne v. United States, 133 S. Ct. 2151 (2013).               Appellant

contends, for the first time, that his sentence is illegal under Alleyne

because the trial judge applied a five-year mandatory minimum sentence for

committing a crime of violence by, inter alia, visibly possessing a firearm


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4
  Appellant urges this Court to find that trial counsel rendered ineffective
assistance of counsel, vacate his conviction, and remand for retrial. As an
appellate court, however, we cannot reach the factual findings required to
sustain an ineffectiveness claim. Commonwealth v. Colavita, 993 A.2d
874, 894-896 (Pa. 2010) (holding the Superior Court erred in finding
counsel’s trial strategy per se unreasonable based on the record alone). If
we had agreed with Appellant, we would vacate and remand for a hearing on
the merits of his PCRA petition.



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that placed the victim in reasonable fear of death or serious bodily injury, 42

Pa.C.S.A. § 9712.         “Here, Appellant failed to present his legality of

sentencing claim in his PCRA petition, or otherwise in the PCRA court below,

and raised the issue for the first time [in a supplemental brief]. It is well-

settled that issues not raised in a PCRA petition cannot be considered on

appeal.”5 See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011)      (internal   quotation    omitted).    But   cf.   Commonwealth    v.

Weatherill, 24 A.3d 435, 437 (Pa. Super. 2011) (noting a split of authority

as to whether legality of sentence may be raised for the first time on PCRA

appeal).

       Order affirmed. Motion for Leave to File Addendum denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014
____________________________________________


5
  Insofar as Appellant claims Alleyne retroactively precludes the trial court’s
use of the deadly-weapon sentencing enhancement (DWE), we would find
his argument meritless. See Commonwealth v. Buterbaugh, 91 A.3d
1247, 1270 n.10 (Pa. Super. 2014) (en banc). Alleyne concerns imposition
of mandatory minimum sentences from which a sentencing court cannot
deviate. The DWE merely requires a court to raise the sentencing guidelines
range. The trial court retains discretion to sentence outside the DWE
guidelines range, as it did in this case. See id.



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