J-S53005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 FRANK S. BRAXTON                          :
                                           :
                    Appellant              :   No. 1550 EDA 2018

                 Appeal from the PCRA Order April 24, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011084-2014


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 13, 2019

      Appellant, Frank S. Braxton, appeals from the order entered on April 24,

2018, which denied his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court ably summarized the evidence produced during

Appellant’s bench trial:

        The complaining witness, [M.E. (hereinafter “the Victim”)],
        testified that, on May 2, 2014, at approximately 1:30 p.m.,
        he was involved in a "tussle," in the vicinity of 54th Street and
        Baltimore Avenue, in the City of Philadelphia, during which
        he was struck on the head with a hard object. As a result of
        the blow[,] he received[] a concussion[; also,] six staples
        were required to close the laceration [on his head]. He []
        testified that his memory [is now] unclear and that he had to
        drop out of school as a result of his injuries.

        As background, [the Victim] testified that[,] prior to this
        event, he and [Appellant] had been friends since childhood
        and were "like brothers."      When he was previously
        incarcerated on an unrelated matter, [Appellant] had
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         promised to store and maintain [the Victim’s] personal
         property. On being released from detention, [the Victim]
         learned that [Appellant] had disposed of this property[,]
         prompting him to commence a lawsuit to recover the value
         of his property.

         On May 4, 2014, [the Victim] was standing[] among a group
         of men in front of the "family" barber shop, when [Appellant]
         approached him saying[:] "You told people I stole your
         stuff." Prior to the "tussle" breaking out, [the Victim] stated,
         in his statement given to Philadelphia Police Detective
         [Leinmiller]:

              []Then he shifted his feet like he's going to fight me.
              I went to walk away and he punched me with a left
              fist on the back of my head. I grabbed him by the
              waist and he's raining punches down on me. I felt
              something hard in his waist area. I thought it was his
              belt buckle. Some of the people around start breaking
              us up.

              Then I felt something hit me real hard in the back of
              the head. Blood started shooting out everywhere, and
              when I looked up, [Appellant] had a gun in his right
              hand. He tried to hit me with the gun again, but I
              moved and it brushed past my face[.]

         Philadelphia Police Officer[] Marc Peterson, testified that he
         was the first officer to arrive at the scene. He described [the
         Victim] as being upset, hurt[,] and bleeding from the head.
         [Detective Peterson] also testified that [the Victim] identified
         [Appellant] as his assailant.

PCRA Court Opinion, 2/6/19, at 4-5 (citations omitted).

       The trial court found Appellant guilty of aggravated assault, firearms not

to be carried without a license, carrying firearms on the public streets of

Philadelphia, simple assault, and possessing instruments of crime.1           On

____________________________________________


1  18 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 6108, 2701(a), and 907(a),
respectively.

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January 14, 2016, the trial court sentenced Appellant to serve an aggregate

term of six to 23 months in jail, followed by three years of probation, for his

convictions.   Appellant did not file a direct appeal from his judgment of

sentence.

      On January 14, 2017, Appellant filed a timely, counseled PCRA petition.

Appellant raised a number of claims in this petition, including that trial counsel

was ineffective for failing to “present relevant evidence indicating [Appellant]

no longer possessed the weapons referenced by the Commonwealth” and

“failed to question [the Victim] regarding his conviction for crimen falsi crimes,

specifically theft of prescription forms and utilizing forgery to [] falsely

prescribe control[led] substances.” Appellant’s PCRA Petition, 1/14/17, at 7.

      On April 24, 2018, the PCRA court held a hearing on Appellant’s petition

and, at the conclusion of the hearing, the PCRA court denied Appellant

post-conviction collateral relief. N.T. PCRA Hearing, 4/24/18, at 69; PCRA

Court Order, 4/24/18, at 1. Appellant filed a timely notice of appeal and raises

two issues to this Court:

        1. Did the PCRA court err by dismissing the PCRA petition of
        [Appellant] where there was no reasonable strategic basis for
        defense counsel not to have obtained police reports that a
        firearm was stolen from [Appellant] prior to the May 4, 2014
        incident with [the Victim]?

        2. Did the PCRA court err by dismissing the PCRA petition of
        [Appellant] where there was no reasonable strategic basis for
        defense counsel not to have investigated the criminal
        background of [the Victim]?

Appellant’s Brief at 3 (some capitalization omitted).


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      Our Supreme Court has held:

        Under the applicable standard of review, 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, when supported by the record, are binding
        on this Court. However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffective assistance of counsel which, in

the circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not have
        some reasonable basis designed to effectuate his interests;
        and, (3) but for counsel’s ineffectiveness, there is a
        reasonable probability that the outcome of the challenged
        proceedings would have been different.




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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related
        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        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.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted). “A failure to satisfy any prong of the test

for ineffectiveness will require rejection of the claim.” Id.

      First, Appellant claims that his trial counsel was ineffective for failing “to

obtain police reports that a firearm was stolen from [Appellant] prior to the

May 4, 2014” assault. Appellant’s Brief at 7. As the PCRA court thoroughly

explained, Appellant’s claim is meritless:

        [the Victim] testified at trial that he could not identify his
        assailant; in his statement to Detective [Leinmiller], he

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       clearly stated that [Appellant] struck him with a gun. Since
       he did not identify a particular gun, it is immaterial whether
       any of [Appellant’s] known guns [had been stolen from him
       or] were in police custody at the time he struck [the Victim].
       Furthermore, at the [PCRA] hearing, held on April 24, 2018,
       [Appellant’s trial counsel] testified that he [had]
       conversations with [Appellant] regarding the police custody
       of his firearms but came to no conclusion as to the
       evidentiary value of the police custody. He testified[:]

          []No one ever alleged in this case, and [Appellant]
          should tell you this, that a particular gun that was
          owned by [Appellant] was used to injure the [Victim].
          No one said that. All that happened during the trial
          was that the [Victim] said he was struck over the head
          with a, what he believed to be, firearm. So whether
          or not if, I believe [Appellant] at the time was a, was
          it a bounty hunter or something? He talked about a
          number of guns that he had, I think three. This is all
          from recollection a couple years ago and then at one
          time or another they were all stolen from him. And
          this all came out. He was asked about this on the
          stand. He actually testified to this and the district
          attorney asked him about this when he took the stand,
          so I'm not sure if he was hit by a [.45] caliber. But I
          think what [Appellant] was trying to say was because
          his [.45] caliber had been stolen maybe a couple years
          before, he couldn't have hit the complainant over the
          head with a [.45] caliber maybe.

                                     ...

          I don't think it was relevant in a proper defense for
          [Appellant], given that the [Victim] never said that it
          was [Appellant’s] specific, let me give you an
          example, red gun that had been stolen two years ago;
          it could have been any gun at the time.

       Simply put, just because [Appellant’s] known guns were in
       police custody [does not] alter the fact that he possessed a
       gun at the time he struck [the Victim]. It is clear from the
       record that [Appellant] has failed to meet either the second
       or third prong of the [ineffectiveness of counsel] test. That
       is, he failed to establish "(2) that counsel's action or inaction

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        was not grounded on any reasonable basis designed to
        effectuate appellant's interest; and (3) that there is a
        reasonable probability that the act or omission prejudiced
        appellant in such a way that the outcome of the proceeding
        would have been different." That is, he has failed to
        demonstrate that trial counsel's failure to investigate and
        secure the records of the police custody of his guns had no
        reasonable basis and that he was prejudiced in any way by
        counsel's course of action.

PCRA Court Opinion, 2/6/19, at 6-7 (footnote and some citations omitted).

      We agree with the PCRA court’s cogent analysis and thus conclude that

Appellant’s first claim on appeal fails.

      For Appellant’s second claim on appeal, Appellant contends that his trial

counsel was ineffective for failing to investigate and present, during the bench

trial, the Victim’s federal criminal convictions for conspiracy and possessing a

controlled substance with the intent to deliver (hereinafter “PWID”).

According to Appellant, the Victim’s convictions involved dishonesty or false

statement – and were thus admissible at trial and probative of the Victim’s

credibility – because the circumstances underlying the convictions were that

“[the Victim] was working for a doctor, selling prescriptions from the doctor,

and then writing out the prescriptions and selling drugs on the street.”

Appellant’s Brief at 10-11. This claim fails.

      As we have explained:

        “For the purpose of attacking the credibility of any witness,
        evidence that the witness has been convicted of a crime,
        whether by verdict, or by plea of guilty or nolo contendere,
        shall be admitted if it involved dishonesty or false statement.”
        Pa.R.E. 609(a).       Crimes involving dishonesty or false
        statement are commonly referred to as crimen falsi crimes.
        Crimen falsi involves the element of falsehood, and includes

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           everything which has a tendency to injuriously affect the
           administration of justice by the introduction of falsehood and
           fraud.

           When deciding whether a particular offense is crimen falsi,
           one must address both the elemental aspects of that offense
           and the conduct of the defendant which forms the basis of
           the anticipated impeachment.         Accordingly, this Court
           employs a two-step procedure to determine whether a crime
           is crimen falsi. First, we examine the essential elements of
           the offense to determine if the crime is inherently crimen falsi
           – whether dishonesty or false statement are a necessary
           prerequisite to commission of the crime. Second, if the crime
           is not inherently crimen falsi, this Court then inspects the
           underlying facts that led to the conviction to determine if
           dishonesty or false statement facilitated the commission of
           the crime.

Commonwealth v. Davis, 17 A.3d 390, 395-396 (Pa. Super. 2011)

(corrections and some quotations and citations omitted).

     During the PCRA hearing, Appellant introduced no documentary

evidence demonstrating that the Victim was convicted of any crime. See N.T.

PCRA Hearing, 4/24/18, at 1-70. Nevertheless, the Commonwealth conceded

that the Victim was convicted, in federal court, of “conspiracy and unlawful

possession with intent to distribute Oxycodone.” Id. at 31. However, neither

PWID nor conspiracy to commit PWID is “inherently crimen falsi.”                See

Commonwealth v. Coleman, 664 A.2d 1381, 1384-1385 (Pa. Super. 1995)

(holding     that   a   PWID   conviction   is   not   inherently   crimen    falsi);

Commonwealth v. Causey, 833 A.2d 165, (Pa. Super. 2003) (“[a]ppellant

cites to no authority which would support a finding that conviction of a drug-

related offense can be considered a crimen falsi conviction which bears upon

a witness's honesty or truthfulness and our research has uncovered no


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authority for such a proposition”); 18 Pa.C.S.A. § 903(a) (“A person is guilty

of conspiracy with another person or persons to commit a crime if with the

intent of promoting or facilitating its commission he: (1) agrees with such

other person or persons that they or one or more of them will engage in

conduct which constitutes such crime or an attempt or solicitation to commit

such crime; or (2) agrees to aid such other person or persons in the planning

or commission of such crime or of an attempt or solicitation to commit such

crime”); Commonwealth v. Savage, 566 A.2d 272, 276 (“agreement of two

or more persons to act in concert for a criminal purpose remains the evil

against which the criminal conspiracy statute is directed”).

      Therefore, as the PCRA petitioner, it was Appellant’s burden to introduce

“the underlying facts that led to [the Victim’s] conviction[s],” so that the PCRA

court could “determine if dishonesty or false statement facilitated the

commission of the crime[s].”     See Davis, 17 A.3d at 395-396. However,

during the PCRA hearing, Appellant introduced no evidence, whatsoever, to

establish the underlying facts that led to the Victim’s convictions. See N.T.

PCRA Hearing, 4/24/18, at 1-70. Instead, in his attempt to establish that the

Victim’s federal convictions involved dishonesty or false statement, Appellant

relied on the federal superseding indictment, which charged the Victim with

the crimes. See Appellant’s PCRA Petition, 1/14/17, at Exhibit F; N.T. PCRA

Hearing, 4/24/18, at 6. Yet, the superseding indictment is a mere charging

document.    See F.R.Crim.P. 7.    It established the crimes that the federal

government charged the Victim with – it did not establish “the underlying facts

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that led to [the Victim’s] conviction[s].” See Davis, 17 A.3d at 395-396

(emphasis added).        And, in the absence of any evidence that the Victim

pleaded guilty based upon the allegations in the charging document, 2 the

evidence Appellant produced during the PCRA hearing fails to satisfy his

burden of production that “the underlying facts that led to [the Victim’s]

conviction” involved dishonesty or false statement. As such, Appellant failed

to demonstrate that the evidence would have been admissible at trial and,

correspondingly, failed to demonstrate that his trial counsel was ineffective

for not introducing the evidence. Appellant’s claim of error fails.

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




____________________________________________


2Indeed, during the PCRA hearing, Appellant introduced no evidence as to
whether the Victim went to trial or entered a plea to the crimes. See N.T.
PCRA Hearing, 4/24/18, at 1-70.


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