J-S79018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

BASIL BROOKS,

                           Appellant                      No. 3268 EDA 2013


            Appeal from the PCRA Order of November 22, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0606211-2006


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 25, 2015

      Appellant, Basil Brooks, appeals from an order entered on November

22, 2013 in the Criminal Division of the Court of Common Pleas of

Philadelphia County that dismissed, without a hearing, his petition filed

pursuant   to   the    Post   Conviction   Relief   Act   (PCRA),   42   Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court summarized the background facts in this matter as

follows:

      On October 10, 2007, [a jury found Appellant guilty of first-
      degree murder,] [v]iolation of the [u]niform [f]irearms [a]ct
      (VUFA), and [p]ossession of an [i]nstrument of [c]rime (PIC).
      On November 29, 2007, the [trial c]ourt imposed a mandatory
      sentence of life imprisonment for murder, a consecutive
      sentence of one to seven (1-7) years’ incarceration for VUFA,
      and a sentence of one to two (1-2) years’ incarceration for PIC
      to run concurrent to the sentence imposed for his VUFA
      conviction.


*Retired Senior Judge assigned to the Superior Court.
J-S79018-14


       On December 5, 2007, Appellant filed post-sentence motions,
       which were denied by the [trial c]ourt on April 8, 2008.
       Appellant then filed a direct appeal, claiming the [trial c]ourt
       erred in admitting “prior bad acts” testimony into evidence,
       challenging the weight and sufficiency of his [convictions], and
       that the [trial c]ourt erred by giving the jury a hypothetical
       example to illustrate the recklessness required for third[-]degree
       murder. Appellant’s judgment of sentence was affirmed on May
       25, 2010. [Thereafter,] Appellant’s [p]etition for [a]llowance of
       appeal was denied on January 20, 2011.

       On December 9, 2011, Appellant filed a pro se [PCRA p]etition.
       Counsel was appointed and filed an [a]mended [p]etition on
       November 1, 2012. On May 21, 2013, the Commonwealth filed
       a [m]otion to [d]ismiss. On June 4, 2013, Appellant filed an
       answer to the Commonwealth’s motion and on June 7, 2013, a
       [s]upplemental [a]mended [p]etition was filed. On July 18,
       2013, the Commonwealth filed a [s]upplemental [m]otion to
       [d]ismiss in response.

       On October 18, 2013, th[e PCRA c]ourt filed a notice of intent to
       dismiss pursuant to Pa. R. Crim. P. 907. Th[e PCRA c]ourt
       formally dismissed Appellant’s PCRA petition on November 22,
       2013.

       Appellant filed his [n]otice of [a]ppeal on November 25, 2013.
       That same day, th[e PCRA c]ourt ordered Appellant to file a self-
       contained and intelligible statement of matters complained of on
       appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of
       Appellate Procedure.        Appellant filed a timely 1925(b)
       [s]tatement on November 27, 2013.

PCRA Court Opinion, 6/23/14, at 1-2.

       Appellant’s brief1 raises the following questions for our review:


____________________________________________


1
  Following the timely filing of his brief, Appellant filed an application for this
Court to accept his principal brief although it was prepared using 12-point
font as opposed to 14-point font required pursuant to Pa.R.A.P. 124(a)(4).
We grant Appellant’s request.



                                           -2-
J-S79018-14


     Did the PCRA court err in denying without a hearing the following
     claims, all of which were answered in the negative below:

       Was counsel ineffective for failing to impeach the two
       primary Commonwealth witnesses with evidence related to
       their own 19 criminal cases?

       Was counsel ineffective for failing to request a jury
       instruction pursuant to Commonwealth v. Kloiber in light
       of the evidence that eyewitness Angelo Slaughter failed to
       identify Appellant on a prior occasion?

       Was counsel ineffective for failing to object to the trial
       court’s instruction that required a grave and serious doubt
       before a juror could vote to acquit?

       Was counsel ineffective for failing to object when the trial
       court excluded the public from the courtroom during the
       trial for a trivial reason that did not outweigh Appellant’s
       rights to a public trial?

       Was counsel ineffective for failing to object to the trial
       court’s unprecedented procedure of conducting portions of
       voir dire, including the exercise of both for-cause and
       peremptory challenges, in the absence of Appellant?

     Did the PCRA court err in denying the PCRA petition without ever
     addressing Appellant’s motions for discovery as set forth in
     various pleadings seeking information regarding:

       Commonwealth efforts to relocate Angelo Slaughter and to
       provide assistance of any kind to him;

       Benefits conferred by the Commonwealth to either Angelo
       Slaughter or Leslie Spaulding in connection with their
       various criminal cases;

       Evidence in the possession of either the Commonwealth or
       Clerk of Courts that would help re-create a record to
       determine on which jurors the Commonwealth exercised
       peremptory challenges; and

       The notes of testimony        on   several   cases   of   the
       Commonwealth witness?

                                   -3-
J-S79018-14



Appellant’s Brief at 3-4.

      Appellant challenges an order that summarily dismissed his PCRA

petition alleging claims that trial counsel was ineffective. The standard and

scope of review, as well as the general principles of law, that govern such

claims are as follows:

      Under our standard of review for an appeal from the denial of
      PCRA relief, we must determine whether the ruling of the PCRA
      court is supported by the record and is free of legal error. The
      PCRA court's credibility determinations are binding on [appellate
      courts] when they are supported by the record. However, this
      Court applies a de novo standard of review to the PCRA court's
      legal conclusions.

      To be eligible for PCRA relief, a petitioner must plead and prove
      by a preponderance of the evidence that his or her conviction or
      sentence resulted from one or more of the circumstances
      enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances
      include . . . ineffective assistance of counsel which “so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.” 42
      Pa.C.S. § 9543(a)(2)(ii). []

      Under Pennsylvania Rule of Criminal Procedure 90[7], the PCRA
      court has the discretion to dismiss a petition without a hearing
      when the court is satisfied “that there are no genuine issues
      concerning any material fact, the defendant is not entitled to
      post-conviction collateral relief, and no legitimate purpose would
      be served by any further proceedings.” Pa.R.Crim.P. 90[7(1)].
      To obtain reversal of a PCRA court's decision to dismiss a
      petition without a hearing, an appellant must show that he
      raised a genuine issue of fact which, if resolved in his favor,
      would have entitled him to relief, or that the court otherwise
      abused its discretion in denying a hearing.

      To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements[:]
      (1) the underlying legal claim has arguable merit; (2) counsel

                                    -4-
J-S79018-14


      had no reasonable basis for his or her action or inaction; and (3)
      the petitioner suffered prejudice because of counsel's
      ineffectiveness. [A claim possesses arguable merit if counsel’s
      action or inaction is inconsistent with a constitutional guarantee,
      statute, rule of procedure, or established precedent.]        With
      regard to the second, reasonable basis prong, we do not
      question whether there were other more logical courses of action
      which counsel could have pursued; rather, we must examine
      whether counsel's decisions had any reasonable basis. We will
      conclude that counsel's chosen strategy lacked a reasonable
      basis only if Appellant proves that an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued. To establish the third, prejudice prong,
      the petitioner must show that there is a reasonable probability
      that the outcome of the proceedings would have been different
      but for counsel's ineffectiveness[.]

Commonwealth v. Paddy, 15 A.3d 431, 441-443 (Pa. 2011) (internal

quotations and case citations omitted). If a claim fails under any required

element of the test for ineffectiveness, the court may dismiss the claim on

that basis. Commonwealth v. Reid, 99 A.3d 427, 436 (Pa. 2014).

      In his first issue, Appellant asserts that the PCRA court erred in

dismissing, without a hearing, his claim that trial counsel rendered

ineffective assistance in failing to impeach the Commonwealth’s two primary

witnesses with relevant and admissible aspects of their respective criminal

histories. At trial, the Commonwealth’s case against Appellant centered on

the   testimony   of   Angelo   Slaughter   and    Leslie   Spaulding.      The

Commonwealth offered Slaughter as an eyewitness to the murder and

Spaulding provided background information that established Appellant’s

motive for the crime. Appellant alleges that trial counsel was unjustified in

failing to inquire into the details of the witnesses’ criminal histories, that

                                     -5-
J-S79018-14


counsel lacked a reasonable basis for this omission, and that counsel’s

decision “prevented Appellant from fully challenging [the witnesses’]

self[-]interest and meaningfully establishing their expectation of leniency[.]”

Appellant’s Brief at 25.

       We address this claim by reviewing the witnesses’ respective criminal

histories that Appellant says should have been presented to the jury.          We

then review and apply the law                  governing the admissibility of this

information.     Our analysis focuses first on Slaughter and then turns to

Spaulding.     Since we conclude that trial counsel presented the admissible

aspects of the witnesses’ criminal histories to the jury, we conclude that the

PCRA court did not err in dismissing Appellant’s petition without a hearing.

       Appellant alleges that trial counsel should have presented, as

impeachment material, detailed aspects of Slaughter’s criminal history.

Specifically, Appellant lists the following incidents as relevant and admissible

grounds for impeachment: 1) a February 8, 2005 carjacking arrest that was

pending when Slaughter gave police statements but that was nolle prossed

five weeks after he identified Appellant; 2) a March 28, 2006 guilty plea to

aggravated assault for which Slaughter was serving probation or parole at

the time he testified in the present case2; 3) an April 9, 2007 arrest for

____________________________________________


2
  Appellant suggests that counsel should have examined Slaughter to
establish that he may have sought to curry favor with the Commonwealth
because of potential violations of the terms of his supervisory sentence,
(Footnote Continued Next Page)


                                           -6-
J-S79018-14


eluding a police officer and driving under the influence and a May 10, 2007

felony theft charge (both from Luzerne County) that were pending at the

time he testified in this case and for which he received probation following

the conclusion of Appellant’s trial; 4) the Commonwealth’s decision not to

proceed with charges arising from Slaughter’s false initial statements to

police in this matter; and, 5) various juvenile offenses that were either

withdrawn, dismissed, or proceeded to unspecified delinquency adjudications

between 2001 and 2004. See id. at 13-19.

      Appellant’s claim is that trial counsel should have combed through the

details of each of the foregoing incidents in order to demonstrate for the jury

that Slaughter received favorable treatment or consideration from the

Commonwealth. Appellant argues that it was incumbent upon trial counsel

to place before the factfinder the nature and seriousness of Slaughter’s

charges, the terms of his sentences, and possible benefits garnered from the

Commonwealth to allow the jurors in Appellant’s case to assess thoroughly

Slaughter’s    motives       for   skewing       his   testimony   in   favor   of   the

Commonwealth.

      After careful review, we conclude that the admissible portions of

Slaughter’s criminal record were introduced at trial and that trial counsel

was not ineffective as Appellant alleges. The admission of prior bad acts is
                       _______________________
(Footnote Continued)

including subsequent arrests, his possible status as an absconder, and the
payment status of his fines and costs. See Appellant’s Brief at 16-17.



                                            -7-
J-S79018-14


within the discretion of the trial court and will only be reversed upon a

showing of abuse of discretion. Commonwealth v. Patterson, 91 A.3d 55,

68 (Pa. 2014). It is well-settled in this Commonwealth that evidence of a

distinct crime, except under special circumstances, is inadmissible.        Id.

“[Rule 608(b) of the Pennsylvania Rules of Evidence] precludes the

admission of specific instances of misconduct to attack a witness' character

for truthfulness while Pa.R.E. 609(a) requires an actual conviction of a crime

involving dishonesty or false statement in order for a witness's credibility to

be attacked with evidence of the crime.” Commonwealth v. Chmiel, 889

A.2d 501, 534 (Pa. 2005).     “[Where] there [is] no conviction, admission of

this evidence [is] properly barred to challenge the credibility of the witness.”

Id.   “Under [Pa.R.E. 609(d)], in a criminal case, [evidence of a juvenile

delinquency adjudication] may be used to impeach the credibility of a

witness if [a] conviction [for] the offense would be admissible to attack the

credibility of an adult.” Commonwealth v. Hoover, 2014 WL 7392244, *8

(Pa. 2014).

      On direct examination by the Commonwealth, Slaughter admitted that

he was currently on probation and/or parole for a prior conviction (for his

March 28, 2006 guilty plea to aggravated assault) and that he had two open

cases pending in Pennsylvania (his Luzerne County charges). N.T., 10/4/07,

at 97-98. During cross-examination, Slaughter testified that, at the time he

identified Appellant as the shooter, he feared becoming involved in this case


                                     -8-
J-S79018-14


and he was worried about his other open cases and the fact he was on

probation and/or parole.    Id. at 170-172. Lastly, in her final instructions,

the trial judge reminded the jurors about Slaughter’s prior conviction and

open cases and directed them to consider how such evidence might affect

the veracity of Slaughter’s testimony. N.T., 10/9/07, at 158. Since the jury

was plainly made aware of Slaughter’s supervised status and open cases, it

possessed ample information to assess Slaughter’s credibility as a witness.

Moreover, because trial counsel cannot be deemed ineffective for failing to

pursue meritless claims, the remaining aspects of Slaughter’s criminal

history furnish no grounds for collateral relief.

      With regard to Spaulding, Appellant alleges that trial counsel was

ineffective in failing to present the jury with information concerning:    1)

Spaulding’s December 8, 2005 felony drug and firearms arrest; 2) a

reduction in Spaulding’s bail two weeks before he testified at Appellant’s

trial; 3) a series of arrests from 2003 through 2006 for which the charges

have been withdrawn; and 4) two juvenile delinquency prosecutions, one

which involved an adjudication for the theft or unauthorized use of an

automobile and another where the Commonwealth dismissed the charges.

See Appellant’s Brief at 22-23.

      Our review of the record confirms that trial counsel used the

admissible portions of Spaulding’s criminal history to make the jury aware of

his interest in currying favor with the Commonwealth.           Trial counsel


                                      -9-
J-S79018-14


questioned Spaulding about his open firearms charges and his efforts to

obtain bail on those offenses.         N.T., 10/9/07, at 51-52.    In fact, the jury

heard that Spaulding received use immunity in exchange for his testimony in

the present case.      Id. at 47-48.       In addition, as with Slaughter, the trial

judge reminded the jurors about Spaulding’s open cases and directed them

to consider the possibility of how such evidence might affect the truthfulness

of his testimony.     Id. at 158. Since trial counsel made the jury aware of

Spaulding’s potential bias, we find that Appellant’s allegation merits no

relief.3

       Appellant’s second issue contends that trial counsel was ineffective for

failing to request an instruction under Commonwealth v. Kloiber, 106

A.2d 820 (Pa. 1954). The thrust of Appellant’s claim is that Slaughter (who

knew Appellant from the neighborhood) initially failed to identify Appellant

as the assailant in this case. In support of his claim, Appellant stresses that

“Kloiber requires a cautionary instruction whenever a trial identification is

preceded by a prior failure to identify[.]” Appellant’s Brief at 36.

       A Kloiber charge is appropriate where there are special identification

concerns: a witness did not have the opportunity to clearly view the

defendant, equivocated in his identification of a defendant, or had difficulty
____________________________________________


3
  Given Appellant’s failure to demonstrate prejudice on the present record,
we conclude that he is not entitled to relief based upon counsel’s alleged
failure to confront Spaulding with a single juvenile adjudication involving
crimen falsi.



                                          - 10 -
J-S79018-14


making an identification in the past. Cf. Commonwealth v. Rollins, 738

A.2d 435, 448 n.14 (Pa. 1999).          However, “[w]hen the witness already

knows the defendant, this prior familiarity creates an independent basis for

the   witness's   in-court   identification   of   the    defendant   and   weakens

ineffectiveness claims based on counsel’s failure to seek a Kloiber

instruction.” Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (citations

omitted). Since the need for a Kloiber charge focuses on the ability of a

witness to identify the defendant, our decisional law is clear that prior

inconsistent statements based upon fear of endangerment do not equate to

a witness’ prior failure to identify a defendant.           Reid, 99 A.3d at 449;

Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa. Super. 1991) (Kloiber

instruction inappropriate since fear of identifying defendant cannot be

equated to failure to make identification).              The facts here show that

Slaughter was unwilling, not unable, to identify Appellant since he feared

designation as a “snitch.” Hence, there was no call for a Kloiber instruction

and counsel was not ineffective in deciding to forego such a charge.

      Appellant’s third claim alleges that trial counsel was ineffective in

failing to object to a portion of the instructions to the jury in which the court

supposedly employed a misleading analogy to illustrate the Commonwealth’s

burden of proof. Although Appellant admits that the court properly defined

the Commonwealth’s burden in a separate section of the charge, he claims




                                       - 11 -
J-S79018-14


that trial counsel lacked a reasonable basis for his failure to object, which

prejudiced him.

      Appellant is not entitled to relief on this claim.   As we have said in

prior cases involving challenges to the instructions given to jurors:

      The nature of a court's instructions to the jury is within the
      discretion of the court, so long as the court accurately instructs
      the jury on the appropriate legal principles involved.         This
      Court's main concern is that the charge clearly, adequately, and
      accurately presents the law to the jury for its consideration. The
      jury charge must be reviewed not in isolated portions but as a
      whole to ascertain whether it fairly conveys the required legal
      principles at issue.

Commonwealth v. Willis, 990 A.2d 773, 776 (Pa. Super. 2010) (internal

quotations and citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

      After a thorough review of the trial court's entire jury charge, we are

satisfied that the jury received a comprehensive and accurate presentation

of the law as it applied to this case. As even Appellant concedes, the trial

court accurately defined the Commonwealth’s burden in its charge to the

jurors.   Moreover, our review of the challenged portion of the court’s

instruction convinces us that the court offered its example as a means to

focus the jurors on the solemn nature of their deliberations and the concept

that reasonable doubt is something that causes one to hesitate or refrain

from acting in a matter of important concern.        See Commonwealth v.

Thomas, 602 A.2d 820, 822-823 (Pa. 1992) (approving jury charge defining

reasonable doubt as a doubt of such substance that it would prevent further

action in a matter of importance in a juror’s own affairs). Thus, we find no

                                     - 12 -
J-S79018-14


misstatement of the law and trial counsel was not ineffective in deciding not

to object to the charge.

       Appellant’s fourth and fifth claims allege ineffective assistance in trial

counsel’s failure to object to alleged violations of Appellant’s rights to a

public trial and to attend all aspects of the proceedings before the trial court.

Because we dispose of these contentions on related grounds, we shall

address them in a single discussion.

       In his fourth claim, Appellant alleges that the PCRA court erred in

summarily dismissing his claim that trial counsel4 was ineffective in failing to

object when the trial court ordered several members of the public to leave

the courtroom during voir dire in order to accommodate prospective jurors.

Appellant argues that the trial court impermissibly closed the courtroom for

the initial portions of voir dire without offering compelling reasons for her

decision and without considering less intrusive measures such as allowing

members of the gallery to stand inside the courtroom or splitting the venire
____________________________________________


4
   In his brief, Appellant also contends that direct appeal counsel was
ineffective in failing to raise his public trial claim. Appellant’s Brief at 51.
This claim is waived as Appellant never included it within his Pa.R.A.P. 1925
concise statement. See Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in
concise statement are waived).         Even if this claim were not waived,
Appellant would not be entitled to relief. Here, trial counsel failed to raise a
public trial objection before the court. Since appellate counsel cannot be
deemed ineffective for failing to raise a claim that was not preserved before
the trial court, Appellant’s purported challenge to the performance of direct
appeal counsel immediately fails. See Commonwealth v. Fletcher, 986
A.2d 759, 783 (Pa. 2009) (appellate counsel cannot be faulted for failing to
raise claim that was not preserved a trial level).



                                          - 13 -
J-S79018-14


panel into smaller groups. Appellant also argues that trial counsel lacked a

strategic basis for failing to object.        Finally, Appellant contends that

prejudice should be presumed since his public trial claim represents a

structural defect in the proceedings before the trial court.

      Appellant’s fifth claim asserts that the PCRA court summarily dismissed

his claim that trial counsel was ineffective in failing to object when the trial

court conducted certain proceedings during jury selection in a conference

room outside of Appellant’s presence. Here, Appellant declares that the trial

court’s actions violated his constitutional right to be present at all critical

stages of his trial.    Again, Appellant claims that trial counsel had no

reasonable basis to forgo an objection and that prejudice should be

presumed since this issue involved a structural defect in his trial.     In the

alternative, Appellant asserts that he has demonstrated actual prejudice

since he has alleged and intends to prove that his absence precluded him

from suggesting questions to his attorney.

      As Pennsylvania law recognizes the rights espoused in Appellant’s

brief, we shall assume, without deciding, that Appellant’s claims possess

arguable merit and that trial counsel lacked strategic grounds in failing to

object to the trial court’s directives.   See Commonwealth v. Penn, 562

A.2d 833 (Pa. Super. 1989) (criminal defendant has a right to public trial

which may be overcome where proper balancing of interests has been

conducted, less restrictive alternatives have been explored and rejected, and


                                     - 14 -
J-S79018-14


where trial judge places reasons for closure on the record); Pa.R.Crim.P.

602(A) (providing that defendant “shall be present at every stage of the trial

including the impaneling of the jury”). Notwithstanding these assumptions,

Appellant must demonstrate how trial counsel’s performance prejudiced

efforts of the defense in order to succeed on his present claims. Because we

reject Appellant’s contention that prejudice should be presumed, and since

we find that actual prejudice has not been shown for purposes of Appellant’s

right of presence claim, we conclude that Appellant has not met the third

prong of the test for ineffective assistance.      Accordingly, Appellant is not

entitled to relief.

       Appellant maintains on appeal that his public trial and right of

presence claims involve structural defects that call for a presumption of

prejudice. See Appellant’s Brief at 50 and 56. He is correct that prior cases

such as Commonwealth v. Knight, 364 A.2d 902 (Pa. 1976) have held, on

direct appeal, that where an appellant was denied his right to a public trial,

a new trial must be granted and that no showing of prejudice is required.5

However, these cases neither address nor hold that a petitioner on collateral

____________________________________________


5
   Like Knight, the decision of this Court in the direct appeal of
Commonwealth v. Johnson, 455 A.2d 654, 658 (Pa. Super. 1982)
declared that a new trial must be granted, without a showing of prejudice, if
the defendant is denied his right to a public trial.

The parties have not cited, and we have not located, an analogous
Pennsylvania holding in the context of a right of presence claim.



                                          - 15 -
J-S79018-14


review is relieved of the burden to prove prejudice within the context of a

claim asserting counsel’s ineffectiveness.   To the contrary, prior cases on

collateral review that have considered the exclusion of the public from voir

dire proceedings have held that the petitioner must demonstrate actual

prejudice. See Commonwealth v. Johnson, 500 A.2d 173, 177-178 (Pa.

Super. 1985) (petitioner alleging ineffective assistance arising from counsel’s

failure to seek public voir dire must demonstrate actual prejudice; new trial

unwarranted where petitioner did not “suggest a likelihood that a jury

selected in a different manner would have reached a different result”);

Commonwealth v. Brandt, 509 A.2d 872, (Pa. Super. 1986) (counsel’s

failure to object to voir dire conducted in chambers rather than in open court

did not constitute ineffective assistance of counsel where petitioner failed to

show, among other things, that jury selected in another manner would have

reached a different verdict), appeal denied, 521 A.2d 930 (Pa. 1987).

      Indeed, to extract our holdings from the direct review context and

apply them within the PCRA context would effectively deem counsel’s actions

in such situations per se ineffective.   However, as the Supreme Court of

Pennsylvania explained in Commonwealth v. Reaves, 923 A.2d 1119,

1128 (Pa. 2007), the situations within the PCRA context in which prejudice is

presumed are rare, and are limited to when counsel’s actions wholly deny a

defendant the right to appellate review, such as the failure to timely file a

requested appeal or Rule 1925 statement. In Reaves, the High Court held


                                    - 16 -
J-S79018-14


that counsel’s failure to move for reconsideration of sentence following a

violation of probation proceedings did not waive any and all appellate issues

– only those claims subject to issue preservation requirements which were

not otherwise properly preserved. Id. at 1128-1129.        The Supreme Court

in Reaves expressly distinguished counsel’s actions that result in the total

deprivation of appellate rights, from counsel’s actions that allow an appeal,

albeit on a more limited scope.    Id. at 1128. In the latter situations, the

Supreme Court explained, prejudice is not presumed.           Id. (“It is thus

apparent that counsel's lapse did not deprive appellee of his right to

appellate review; at most, his attorney's conduct at the trial level ‘narrowed

the ambit’ of the appeal new counsel pursued.            As such, it is clear

that…appellee must satisfy the…actual prejudice standard.”)

      In this matter, as in Reaves, trial counsel’s failures to object to

closure of the courtroom and Appellant’s exclusion during a brief period of

jury selection at most limited the scope of Appellant’s challenges on direct

appeal, but did not wholly deny appellate review.      Consequently, the fact

that Appellant here has raised public trial and right of presence claims

cannot obviate the need to demonstrate prejudice in the PCRA context. See

Commonwealth v. Williams, 9 A.3d 613, 619 (Pa. 2010) (holding that

while the defendant’s unqualified right to be present at every stage of the

trial was violated without an objection from trial counsel, counsel’s failure to

object did not result in a total failure to subject the case to the adversarial


                                     - 17 -
J-S79018-14


process, and therefore was not an instance where a presumption of

prejudice applied).   Because Appellant has not pled and proved that the

outcome of his trial would have been different if his trial counsel had lodged

proper objections, Appellant’s claims of ineffective assistance of counsel

must fail.

      We are not willing to equate the prejudice presumed on direct appeal

with the prejudice necessary for an ineffective assistance of counsel claim.

They are, in fact, quite different. Indeed, in Williams, the Supreme Court

explained that:

      Although it purported to apply the [three-prong test for
      ineffective assistance], the Superior Court conducted a harmless
      error analysis, which was improper given the procedural posture
      of this case. See Commonwealth v. Williams, 959 A.2d 1272,
      1283 (Pa. Super. 2008). The harmless error standard typically
      applies to claims of trial court error raised on direct appeal, and
      the burden of proof is on the Commonwealth, which must
      demonstrate beyond a reasonable doubt that the error did not
      affect the verdict. See Commonwealth v. Howard, 645 A.2d
      1300, 1307 (Pa. 1994). In contrast, an ineffectiveness claim
      shifts the focus to counsel's stewardship, and under [the
      conventional test for ineffective assistance], the defendant has
      the burden of showing that counsel's performance “had an actual
      adverse effect on the outcome of the proceedings.” Howard,
      645 A.2d at 1307. Thus, it is more difficult to obtain relief on
      collateral review because [ineffectiveness claims] place[] a
      heavier burden on the defendant. See Commonwealth v.
      Reaves, 923 A.2d 1119, 1130 (Pa. 2007) (discussing the
      evidentiary standards applicable to preserved issues of trial court
      error and derivative claims of ineffective assistance of counsel).

Williams, 9 A.3d at 619, n.7 (parallel citations omitted).




                                    - 18 -
J-S79018-14


      Simply because on direct appeal Appellant would not have been

required to establish prejudice, does not mean that he is entitled to the

same presumption of prejudice on collateral review.           Because counsel’s

alleged ineffectiveness did not result in a total abandonment of counsel or a

failure of the adversarial proceedings, we do not believe that a presumption

of prejudice applies. Consequently, Appellant was obligated to establish that

his counsel’s purported failures resulted in prejudice to his proceedings.

Having failed to establish prejudice, we hold that the trial court properly

denied Appellant’s PCRA petition as a matter of law.

      We also reject Appellant’s alternate contention that he demonstrated

actual prejudice for purposes of his right of presence claim. Here, Appellant

maintains that his exclusion from voir dire precluded him from suggesting

questions and/or objections to counsel.         See Appellant’s Brief at 56.

However, in preparing his petition, Appellant had every opportunity to

compare his knowledge with trial counsel’s notes and recollection from the

proceedings and come forward with fact-based claims that demonstrated

how his brief exclusion hampered the defense.             Despite this chance,

Appellant fails to cite a single question or suggestion he would have made to

trial counsel, much less explain how his insights offered a reasonable

probability of a different trial result. Appellant’s bald allegations of prejudice

entitle him to no relief.




                                      - 19 -
J-S79018-14


      Appellant’s final claim asserts that the PCRA court erred in dismissing

his petition without addressing his discovery motions.       Through these

motions, Appellant sought documents and information regarding the

Commonwealth’s use of preemptory challenges and undisclosed benefits to

Commonwealth witnesses.        After careful review, we discern no error or

abuse of discretion on the part of the PCRA court since Appellant failed to

show exceptional circumstances that support his discovery requests.

Pa.R.Crim.P. 902(E)(1) (“no discovery shall be permitted at any stage of the

proceedings, except upon leave of court after a showing of exceptional

circumstances”); Reid, 99 A.3d at 445 (allegation that petitioner only

“believes and alleges” that Commonwealth witness received considerations is

insufficient to permit discovery).

      Order affirmed. Appellant’s Application for Court to Accept Appellant’s

Principal Brief in 12-point font granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2015




                                     - 20 -
