J-S53023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES BROOKS                               :
                                               :
                       Appellant               :   No. 461 EDA 2018

                 Appeal from the PCRA Order January 16, 2018
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005143-2013


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 1, 2018

        James Brooks appeals pro se from the order entered January 16, 2018,

in the Court of Common Pleas of Delaware County, that denied without a

hearing, his first petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 Brooks seeks relief from the

judgment of sentence of 10 to 20 years’ imprisonment, followed by a four year

term of probation, after a jury convicted him of firearm not to be carried

without a license and possession of a firearm with an altered manufacturer’s

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1Appointed counsel filed a Turner/Finley no merit letter and application to
withdraw from representation, and the PCRA court granted the application to
withdraw. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.3d 213 (Pa. Super. 1988) (en banc).
J-S53023-18



number,2 and the trial court convicted him of carrying a firearm as a prohibited

person, possession of a small amount of marijuana, and driving under the

influence – general impairment (refusal).3       Brooks contends his sentence is

illegal and trial counsel and PCRA counsel were ineffective. Based upon the

following reasons, we affirm.

        The facts of this case were aptly summarized by the trial court and set

forth by this Court in Brooks’ direct appeal:

        On Sunday, April 21, 2013, at approximately 4:50 AM, Officer
        Amanda Klingensmith of the Upper Darby Police Department,
        while in full uniform and on patrol in a marked vehicle, was
        engaged in assisting at an accident scene in Upper Darby
        Township, Delaware County, Pennsylvania. The early morning
        calm was interrupted by squealing tires. The officer looked in the
        direction of the noise, saw a vehicle drive up onto a curb (near the
        intersection of Marshall Road and Long Lane), strike an object
        and, simultaneously, heard a loud crash. She then watched the
        vehicle back off the sidewalk, proceed across Marshall Road and
        then north on Long Lane. Officer Klingensmith jumped into her
        patrol car, activated her emergency overhead lights and siren, and
        began pursuit of the errant vehicle. As she passed the intersection
        from which the flurry of vehicular activity was seen, she noticed
        one traffic light was demolished and the remaining lights at the
        intersection were flashing. Her pursuit ended a short distance up
        Long Lane when she was able to stop behind the vehicle, a silver
        Pontiac Grand Am (PA Tag JGG 1636). She saw fluid flowing onto
        the street which streamed downhill toward the patrol car. Officer
        Klingensmith reported the stop to her dispatcher, provided
        identification information on the car, and explained it was leaking.
        As she approached the passenger side window, she noted that the
        odor from the fluid emanating from the bottom of the car smelled

____________________________________________


2   See 18 Pa.C.S. §§ 6106(a)(1), and 6110.2(a), respectively.

3 See 18 Pa.C.S. §§ 6105(a)(1), 35 P.S. § 780-113(a)(31), and 75 Pa.C.S. §
3802(a)(1), respectively.

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     like gasoline. A backup from the Upper Darby Police Department,
     Officer Randy Desrosiers, appeared at the scene.

     When she looked in the passenger window, she saw a man in the
     drivers seat (identified as [Brooks]) slumped over with his eyes
     closed. The Officer inquired of [Brooks] whether he was sick or
     injured. After opening his eyes, he acknowledged he was neither.
     No signs of physical injury were evident.

     [Brooks] was directed to shut off the ignition and exit to the front
     of the vehicle. She observed heavy damage to the front of the car.
     After he complied, [Brooks] was told to move onto the sidewalk
     and away from the leaking car. [Brooks] showed classic signs of
     intoxication: eyes bloodshot and glassy, slurred speech and
     stumbling gait, all laced with the smell of alcohol.

     Another Upper Darby police officer, Sergeant Steven Oreskovich,
     a certified Field Sobriety Test instructor was summoned to the
     scene. He asked [Brooks] to perform three field sobriety tests
     (horizontal gaze nystagamus (“HGN”) test, the walk-and-turn
     test, and the one-legged stand test). [Brooks] failed all three. Sgt.
     Oreskovich opined that the test results indicated [Brooks] was
     incapable of safely operating a motor vehicle at the time. [Brooks]
     was taken into custody and transported to nearby Delaware
     County Memorial Hospital, where, after having been advised of his
     rights and responsibilities in connection with chemical testing of
     drivers, he refused to allow a blood draw. [Brooks] was then taken
     to the Upper Darby Township Police Headquarters.

     Shortly after [Brooks] was arrested, Officer Desrosier conducted
     an inventory search of the Pontiac before it was towed from the
     scene. He first found two vials (containing green leafy matter) in
     the vehicle’s center console. In addition, within the center console,
     Officer Desrosiers found two plastic vials within which was seen a
     green leafy vegetable matter. Both field tested positive for
     marijuana. The field test was confirmed through additional
     analysis. As he withdrew from the car, he encountered a
     protruding handle of a handgun, sandwiched between the driver’s
     seat and the center console. The firearm was a black 9 mm Ruger
     model LC-9 pistol (loaded with five 9 mm rounds and one in the
     firearm's chamber). He noted that the gun’s serial number had
     been obliterated.




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      A criminal history check through NCIC revealed that [Brooks], in
      1993, was convicted of Robbery, a felony in Philadelphia. That
      disposition rendered it illegal for [Brooks] to possess a firearm.
      The investigation also included a check for a license to
      allow [Brooks] to carry a concealed weapon. [Brooks] never
      secured such an authorization. Inquiry of PennDOT disclosed that
      [Brooks] was not licensed to drive and that the Pontiac was
      registered to another individual.

      Subsequent testing revealed that the Ruger was operational and
      that the rounds discovered were live. Based on the pre-dawn
      events and the information obtained, [Brooks] was charged with:
      Person not to possess, use, manufacture, control, sell or transfer
      firearms; Possession of a firearm with altered manufacturer’s
      number; Firearms not to be carried without a license; Possession
      of a small amount of marijuana; Driving Under the Influence
      (General Impairment, refusal); Driving Under the Influence
      (Controlled Substance — impaired ability) and, several summary
      offenses.

Commonwealth v. Brooks, 120 A.3d 389 [2015 Pa. Super. Unpub. LEXIS

208 at *1-*5] (Pa. Super. 2015) (unpublished memorandum), quoting Trial

Court Opinion, 7/9/2014, at 1-3 (footnotes omitted).

      Brooks was convicted and sentenced as stated above. Brooks filed a

motion for reconsideration, which was denied by the trial court. Brooks then

filed a direct appeal in this Court. On February 24, 2015, this Court affirmed

the judgment of sentence. See id. Brooks did not file a petition for allowance

of appeal in the Pennsylvania Supreme Court. On November 19, 2015, Brooks

filed the instant PCRA petition.

      The PCRA court appointed PCRA counsel, Henry D. Forrest, Esquire, who

subsequently filed a Turner/Finley no merit letter and application to

withdraw on September 28, 2017.       On October 10, 2017, the PCRA court

issued an order that granted counsel’s application to withdraw and gave


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Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. On

October 26, 2017, Brooks filed a pro se objection to the Rule 907 notice. The

PCRA court dismissed Brooks’ petition on January 16, 2018, and this timely

pro se appeal followed.

      Brooks presents seven issues for this Court’s review:

   1. Whether [Brooks’] counsel rendered ineffective assistance of
      counsel in violation of [Brooks’] 6th and 14th Amendment rights
      for not filing an Omnibus Pretrial Motion to challenge the charged
      offense of Possession of a Firearm, which actually fell under
      constructive possession?

   2. Whether [Brooks’] trial counsel rendered ineffective assistance of
      counsel in violation of [Brooks’] 6th and 14th Amendment rights
      for not filing an Omnibus Pretrial Motion to challenge the Upper
      Darby Police Incident/Arrest Report, wherein said Report did not
      give probable cause for the offense(s) charged; and wherein Police
      Officer gave perjured testimony of [Brooks] being transported to
      “nearby” Hospital?

   3. Whether [Brooks’] trial counsel rendered ineffective assistance of
      counsel in violation of [Brooks’] 6th and 14th Amendment rights
      for not protecting [Brooks’] equal protection rights during voir dire
      wherein the prosecution struck the only two (2) Black jurors,
      which prejudiced [Brooks]?

   4. Whether [Brooks’] trial counsel, and, appellate counsel, rendered
      ineffective assistance of counsel, in violation of [Brooks’] 6th and
      14th Amendment rights, in violation of Pa.R.Evid. 404(b),
      Character Evidence; Crimes or Other Acts - Rule 404(a)(1), that
      renders prior convictions inadmissible in determining an
      individual’s character?

   5. Whether [Brooks’] trial counsel, and, appellate counsel, rendered
      ineffective assistance of counsel in violation of [Brooks’] 6th and
      14th Amendment rights, by not obtaining, and/or advancing
      certain affidavits as exculpatory, that would have proven [Brooks’]
      innocence as to the charged offense of Possession of a Firearm?



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   6. Whether the [trial] court erred by imposing a mandatory minimum
      sentence that was/is unconstitutional in light of Commonwealth
      v. Hopkins, 632 Pa. 36; 117 A.3d 247; 2015 Pa. LEXIS 1282, in
      violation of both the United States and Pennsylvania Constitutions,
      and contrary to the Pennsylvania Supreme Court?

   7. Whether the [trial] court erred in giving jury instructions on
      constructive possession, that prejudiced [Brooks], by not giving
      the jury all of the elements of constructive possession?

Brooks’ Brief at 2-5.

      In reviewing Brooks’ claims,

      [o]ur standard of review of the denial of a PCRA petition is limited
      to examining whether the evidence of record supports the court’s
      determination and whether its decision is free of legal error. This
      Court grants great deference to the findings of the PCRA court if
      the record contains any support for those findings. [A] petitioner
      is not entitled to a PCRA hearing as a matter of right; the PCRA
      court can decline to hold a hearing if there is no genuine issue
      concerning any material fact and the petitioner is not entitled to
      post-conviction collateral relief, and no purpose would be served
      by any further proceedings. A reviewing court on appeal must
      examine each of 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. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations

and quotations omitted).

      Preliminarily, we address the timeliness of Brooks’ pro se concise

statement. Our Rules of Appellate Procedure provide, in relevant part:

      A pro se filing submitted by a prisoner incarcerated in a
      correctional facility is deemed filed as of the date it is delivered to
      the prison authorities for purposes of mailing or placed in the
      institutional mailbox, as evidenced by a properly executed
      prisoner cash slip or other reasonably verifiable evidence of
      the date that the prisoner deposited the pro se filing with the
      prison authorities.

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Pa.R.A.P. 121(a) (emphasis added).

      The PCRA court, on February 9, 2018, issued an order requiring Brooks

to file a Pa.R.A.P. 1925(b) statement within 21 days of the date of the order.

Twenty-one days from February 9, 2018 was Friday, March 2, 2018. Brooks’

pro se concise statement was filed six days late, on March 8, 2018.

      Attached to Brooks’ concise statement is a “proof of service” wherein he

states he mailed his concise statement on February 28, 2018. Additionally,

Brooks includes an unsworn declaration under penalty of perjury, pursuant to

28 U.S.C. § 1746, stating he gave his concise statement to prison officials on

February 28, 2018 for forwarding to the court.

      Here, because we find Brooks has not provided any “reasonably

verifiable evidence” of the date he gave his Rule 1925(b) statement to prison

authorities, we could remand for a hearing on this issue. However, no remand

is required here since we conclude, for the reasons set forth below, Brooks’

substantive   arguments warrant      no   relief.   See Commonwealth v.

Chambers, 35 A.3d 34, 40 (Pa. Super. 2011) (declining to remand for a

hearing on timeliness of filing of PCRA petition under prisoner mailbox rule

because, in light of disposition of petitioner’s substantive argument, “it would

be futile to do so.”).




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       The first issue presented by Brooks is his claim that his counsel was

ineffective in failing to file an omnibus pretrial motion to suppress the firearm.4

Brooks argues he had no prior knowledge of the firearm being present in the

vehicle. The PCRA court rejected this claim, as follows:

       In his first matter complained of on appeal, [Brooks] asserts trial
       counsel was ineffective for failing to file a motion to suppress the
       contraband found in the vehicle he was driving. [Brooks] was the
       driver in a one-car accident. The arresting officer witnessed the
       damage from the car accident and observed [Brooks] in the
       driver’s seat, slumped-over with his eyes closed after the
       accident. The officer clearly had a reasonable basis for the vehicle
       stop. During the stop, [Brooks] was under suspicion for DUI, failed
       multiple field sobriety tests, and was subsequently arrested. The
       police then conducted a lawful inventory search of the vehicle
       before it was towed from the scene. It was during this legal
       inventory search that the firearm and other contraband in
       question was discovered. [Brooks’] contention is that because he
       maintains he was unaware of the firearm in the vehicle, its
       admission into evidence should have been suppressed. However,
       this assertion remained a factual issue thoroughly challenged by
       the defense at trial, and it is not an issue of the weapon’s seizure
       being constitutionally improper and as thus beyond an
       exclusionary claim’s purview. The police had a legitimate reason
       to initiate the stop, and conducted a lawful inventory search
       pursuant to his arrest and the resultant inventorying of the
       automobile as a precursor to its towing. Therefore, trial counsel
       lacked any reasoned legal basis to attempt suppression of the
       firearm. A motion to suppress admission of the weapon’s seizure
       prior to trial would have been futile, and trial counsel is not
       ineffective for failing to raise a meritless issue. See
       Commonwealth v. Busanet, 54 A.3d 35, 51 (Pa. 2012).


____________________________________________


4 It bears mention that trial counsel, Emeka Igwe, Esquire, entered his
appearance about one month before commencement of the trial. Prior to that
time, Brooks was represented by Michael Malloy, Esquire. Furthermore, we
point out Brooks’ argument that defense counsel should have sought to
suppress the firearm is set forth in a single sentence in his brief, under
“Summary of Argument.” See Brooks’ Brief at 10-11.

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PCRA Court Opinion, 3/28/2018, at 8-9. Our review confirms the PCRA court’s

analysis. As such, we reject Brooks’ first ineffectiveness claim.

      In the second issue, Brooks contends trial counsel was ineffective for

failing to file an omnibus pretrial motion to challenge the incident/arrest report

that did not give probable cause for the charged offenses and contained

“perjured testimony” that Brooks was transported to a nearby hospital.

      This claim is meritless.    Brooks’ ineffectiveness claim is based upon

Brooks’ dispute with the factual averment in the affidavit of probable cause

that he was taken to Delaware County Memorial Hospital before he was taken

to the police station.   In support of his argument, Brooks attached to his

concise statement a letter from Crozer-Keystone Health System, dated

October 27, 2017. The letter verifies there is no record of James Brooks being

treated on April 21, 2013, at the Crozer-Keystone Health System (which

includes Delaware County Memorial Hospital).         However, whether or not

Brooks was taken to the hospital by police is completely inconsequential. The

alleged inaccuracy would have no bearing on the facts in the affidavit that did

establish probable cause. Accordingly, we reject this claim of ineffectiveness.

      In the third issue, Brooks claims trial counsel was ineffective during voir

dire for not challenging and/or protecting his equal protection rights, when the

prosecutor struck the only two prospective black jurors.        The PCRA court

found that this issue was waived because Brooks did not raise this

ineffectiveness claim until he filed his Rule 1925(b) statement. See PCRA


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Court Opinion, 3/28/2018, at 11, citing Pa.R.A.P. 302(a) (“Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”); Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super.

2003). (“Moreover, [a] party cannot rectify the failure to preserve an issue by

proffering it in response to a Rule 1925(b) order.”) (citation omitted). Our

review confirms the PCRA court’s waiver determination. Therefore, this claim

fails to warrant relief.

       Brooks’ fourth claim is that trial counsel and “appellate” counsel,

referring to PCRA counsel,5 rendered ineffective assistance of counsel, “in

violation of defendant’s 6th and 14th Amendment rights, in violation of

Pa.R.Evid. 404(b), Character Evidence; Crimes or Other Acts - Rule 404(a)(1),

that renders prior convictions inadmissible in determining an individual[’]s

character.” Brooks’ Brief at 3. As this issue was raised for the first time in

Brooks’ Pa.R.A.P. 1925(b) statement, we find the issue has been waived. See

Pa.R.A.P. 302(a), supra; Watson, supra.

       In Brooks’ fifth issue, he claims trial counsel and “appellate”, i.e., PCRA

counsel, were ineffective for not obtaining affidavits as exculpatory, that would

have proven his innocence as to the charged offense of possession of a

firearm.    Specifically, Brooks’ claim is that PCRA counsel was ineffective in



____________________________________________


5 Brooks uses the term “appellate” attorney for PCRA counsel, Henry D.
Forrest, Esquire. See Brooks’ Brief at 9 (“court appointed appellate attorney,
Henry D. Forrest”). See also id. at 12, 16, 20.

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not raising trial counsel’s ineffectiveness for failing to call a witness. This claim

of PCRA counsel’s ineffectiveness was raised for the first time in response to

the PCRA court’s Pa.R.Crim.P. 907 notice, and is properly preserved for our

review. See Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (en

banc); Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (mandating that

petitioner raising allegation of PCRA counsel ineffectiveness do so in response

to Rule 907 twenty-day response period). However, no relief is due.

      There are two requirements to prove an ineffectiveness claim for a

failure to present witness testimony:

      The first requirement is procedural. The PCRA requires that, to be
      entitled to an evidentiary hearing, a petitioner must include in his
      PCRA petition “a signed certification as to each intended witness
      stating the witness’s name, address, date of birth and substance
      of testimony.” 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P
      902(A)(15). The second requirement is substantive. Specifically,
      when raising a claim for the failure to call a potential witness, to
      obtain relief, a petitioner must establish that: (1) the witness
      existed; (2) the witness was available; (3) counsel was informed
      or should have known of the existence of the witness; (4) the
      witness was prepared to cooperate and would have testified on
      defendant’s behalf; and (5) the absence of such testimony
      prejudiced him and denied him a fair trial.

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014) (citation omitted).

      Here, in his objection to the notice of intent to dismiss, Brooks attached

an affidavit, dated November 24, 2015, and averred that he had submitted

this affidavit to PCRA counsel. The affiant, Ronald Wilson, states he is the

owner of the vehicle in question; that on April 21, 2013, while at a party, he

allowed another individual to use his car “to go pick up someone and bring


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them to the party;” that after the party, he and his girlfriend went to the

residence he rented and “got into an argument [and] … woke up my landlord’s

son; ” that [Brooks] “heard the yelling and screaming [and] offered to take

[Wilson’s girlfriend] home [because he] was in a better condition then [sic] I

was to drive her home;” and that “[n]either I nor James [Brooks] was aware

of the gun being in the car.”      Brooks’ Objection of Intention to Dismiss,

10/26/2017, Exhibit “A”, Wilson Affidavit, 11/24/2015.

      Significantly, however, nowhere in the affidavit does Wilson state he

was available and willing to testify at trial on Brooks’ behalf. Therefore, we

reject Brooks’ claim PCRA counsel was ineffective for failing to raise trial

counsel’s ineffectiveness in not calling Ronald Wilson as a witness.

      In his penultimate claim, Brooks argues that the trial court erred by

imposing a mandatory minimum sentence that is unconstitutional under

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). Specifically, Brooks

contends he was sentenced to a mandatory minimum sentence for possession

of a firearm not to be carried without a license and possession of a firearm to

be carried with an altered manufacturer’s number. See Brooks’ Brief at 11-

12.   The PCRA court rejected this claim on the basis that Brooks was not

sentenced pursuant to any mandatory minimum sentencing statute.              Our

review confirms the PCRA court’s determination. Therefore, this claim fails.

      Finally, Brooks claims the trial court erred in giving jury instructions on

constructive possession that prejudiced him, by not “giving the jury all of the


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elements of constructive possession.”          Brooks’ Brief at 5 (emphasis in

original).   See also id. at 21-22.    This argument is waived, however, as

Brooks should have raised this claim of trial court error in his direct appeal.

See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is waived

if the petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconviction

proceeding.”). Accordingly, no relief is due.

      Order affirmed.

      Judge Platt joins this memorandum.

      President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/18




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