J-S75010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA

BRANDON TREMAYNE PIERCE

Appellant : No. 477 EDA 2018

Appeal from the PCRA Order January 18, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007038-2011

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 24, 2019

Brandon Tremayne Pierce appeals from the order dismissing, after a
hearing, his amended petition for relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant claims ineffective assistance
of trial counsel. We affirm on the basis of the PCRA court opinion.

In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. See PCRA Court Opinion, 5/08/18,
at 1-3; see also Trial Court Opinion, 3/07/14, at 1-9. Therefore, we have no
reason to restate them at length here.

For the convenience of the reader, we note briefly that a jury convicted
Appellant of murder of the first degree and related offenses. Appellant’s
conviction arose out of the shooting death of his sometime paramour, D. D.

She was sixteen. Appellant was nineteen.
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The Commonwealth presented evidence that Appellant lured D.D. into
an alleyway where they had previously met for sexual encounters. Text
messages D.D. sent to friends confirmed the plan. Neighbors saw D.D. and
Appellant enter the alleyway. However, once they were together, Appellant
shot her.

Appellant believed D.D. had arranged for Appellant to be robbed in his
home several weeks earlier. During the robbery, the assailants shot at
Appellant. Appellant confessed killing D.D. to a friend. His DNA was found on
the grip of the handgun that was determined to be the murder weapon.

At trial, Appellant testified in his own defense. He claimed that once he
and D.D. were together in the alleyway, he was hit from behind by someone
who was trying to rob him, again, through D.D. Furthermore, Appellant stated
that it was the third party assailant who shot D.D. out of frustration, because
Appellant had no money. After shooting D.D., Appellant claimed that the
assailant poured bleach over Appellant.

Even though it was mid-July, Appellant was wearing multiple layers of
clothing. Neighbors confirmed that Appellant left the alleyway in different
clothes than when he entered.

After conviction, the court sentenced Appellant, inter alia, to life without
parole. This Court affirmed the judgment of sentence. See Commonwealth

v. Pierce, 113 A.3d 339 (Pa. Super. filed November 3, 2014) (unpublished
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memorandum). Our Supreme Court denied allowance of appeal. See
Commonwealth v. Pierce, 116 A.3d 604 (Pa. 2015).

On March 11, 2016, Appellant filed a timely PCRA petition. The court
appointed counsel, who filed an amended petition. The court denied the
petition after a hearing on October 3, 2017. See Order, 1/18/18; see also
N.T. Hearing, 10/03/17. This timely appeal followed.!

Appellant presents three claims of ineffectiveness for our review:

Whether [A]ppellant is entitled to relief pursuant to the Post-
Conviction Relief Act in the form of a new trial because trial
counsel rendered ineffective assistance by the following:

1. Failing to investigate, interview, and call available
character witnesses, Darchelle Pierce and_ Craig
Gissendanner, who would have testified that appellant had
a reputation in the community for being a truthful, peaceful,
non-violent person without a reasonable strategic basis, and
that the admission of the evidence prejudiced appellant in a
manner that the outcome of the trial could have been
different had this evidence been presented to the jury[?];

2. Opening the door to the admission of prior bad act
evidence, and failing to object, and/or request a cautionary
jury instruction when the prosecutor elicited testimony that
appellant previously sold drugs, after [the trial c]ourt ruled
this to be inadmissible evidence[?]; and

3. Failing to request that DNA evidence seized herein be
tested against the DNA of Cory Collins, Bryant James, and
Abdul Timbo[?]

Appellant’s Brief, at 4.

 

1 Appellant filed a timely statement of errors on March 22, 2018. The PCRA
court filed an opinion, on May 8, 2018. See Pa.R.A.P. 1925.

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Appellant’s three claims on appeal all assert ineffective assistance of
counsel. We proceed by determining whether the PCRA court’s factual findings
are supported by the record. See Commonwealth v. Ford, 44 A.3d 1190,
1194 (Pa. Super. 2012). In doing so, we read the record in the light most
favorable to the prevailing party. See id. If this review reveals support for the
PCRA court's credibility determinations and other factual findings, we may not
disturb them. See id. We, however, afford no deference to the PCRA court’s
legal conclusions. See id.

“It is well-established that counsel is presumed effective, and a PCRA
petitioner bears the burden of proving ineffectiveness.” Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 779-780 (Pa. Super. 2015) (citations
omitted). To prove ineffectiveness, a petitioner must establish his underlying
claim has arguable merit; no reasonable basis existed for counsel’s failure to
raise these claims; and he suffered prejudice as a result of counsel’s inaction.
See Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018). “The
PCRA court may deny an ineffectiveness claim if the petitioner’s evidence fails
to meet a single one of these prongs.” Commonwealth v. Natividad, 938
A.2d 310, 321 (Pa. 2007) (citation and internal quotation marks omitted).

After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court, we conclude
that there is no merit to any of the issues Appellant has raised on appeal. The

PCRA court’s opinion properly disposes of the questions presented. See PCRA

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Court Opinion, 5/08/18, at pp. 4-11, concluding: (1) trial counsel had
reasonable bases for declining to call Appellant’s mother, Darchelle Pierce, and
his friend, Craig Gissendanner, as character witnesses, where he determined
that Pierce was too emotionally devastated to be effective as a character
witness; Gissendanner had little to offer and had a prior criminal history which
would have been subject to intensive cross-examination as a character
witness; Appellant agreed with counsel’s decision not to call either witness at
trial; and Appellant was not prejudiced by the lack of character witnesses,
given the overwhelming evidence presented by the Commonwealth and
Appellant’s “ludicrous” version of events; (2) trial counsel articulated a
reasonable basis for not objecting or requesting a curative instruction about
the prosecutor’s reference to Appellant’s drug selling activity, to avoid calling
further attention to it; moreover, Appellant referred to his drug activities in
his own testimony; and (3) counsel had no reasonable basis to request DNA
tests from the alleged home invaders where there was no meaningful nexus
between the shots fired in the home invasion and D.D.’s murder weeks later;
also, as a matter of strategy and tactics, counsel did not want to risk having
his defense, based upon suggesting that Cory Collins was responsible for
D.D.’s murder, backfire by negative DNA test results for Collins).

The PCRA court further noted that because the evidence against

Appellant was “overwhelming,” (id. at 11), and his explanations of the events
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were “incredible,” (id. at 8), Appellant failed to prove that in the absence of
any claimed error, the outcome would have been different. See id, at 11.
The PCRA court’s factual findings are all well supported by the record.
Further, we agree with the PCRA court’s reasoning, and adopt it as our own.
Accordingly, we affirm on the basis of the PCRA court’s opinion.
Order affirmed.

Judgment Entered.

 

Joseph D. Seletyn, Est
Prothonotary

Date: 6/24/19
