J-S17045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
             v.                             :
                                            :
RAHEEM ASMAR BROWN,                         :
                                            :
                   Appellant                :           No. 1489 EDA 2016

                  Appeal from the PCRA Order April 21, 2016
              in the Court of Common Pleas of Delaware County,
              Criminal Division, No(s): CP-23-CR-0007153-2008

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED JUNE 01, 2017

        Raheem Asmar Brown (“Brown”), pro se, appeals from the Order

denying his first Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 We affirm.

        On November 26, 2007, Mitchell Williams (“Williams”) and James

Smith (“Smith”) argued in an alleyway near 227 Engle Street, in Chester,

Pennsylvania.     At that time, Brown and Christopher Loper (“Loper”) were

inside of the residence located at 227 Engle Street.        While inside of the

residence, Loper observed a gun tucked inside the front of Brown’s pants.

Brown exited the residence and, in the alleyway, shot and killed Williams.

Brown then re-entered 227 Engle Street through the back door, exited the

residence through the front door, and departed from the scene in a white

vehicle.

1
    See 42 Pa.C.S.A. §§ 9541-9546.
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        Police arrested Brown on October 30, 2008.     Following a jury trial,

Brown was convicted of first-degree murder and possession of an instrument

of crime.2    The trial court found Brown guilty of the additional offense of

person not to possess a firearm.3 Brown filed a Post-Sentence Motion, which

the trial court denied. Thereafter, this Court affirmed Brown’s judgment of

sentence, after which the Pennsylvania Supreme Court denied allowance of

appeal.      Commonwealth v. Brown, 24 A.3d 443 (Pa. Super. 2011)

(unpublished memorandum), appeal denied, 23 A.3d 1054 (Pa. 2011).

        On May 21, 2012, Brown filed a pro se Motion for relief under the

PCRA.      The PCRA court appointed Stephen Dean Molineaux, Esquire

(“Counsel”), to represent Brown. Subsequently, Counsel filed an Application

to Withdraw from his representation of Brown, and a “No-Merit” Letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

Brown submitted additional documents, pro se, which were filed of record.

The PCRA court thereafter granted Counsel’s Application to Withdraw, and

issued a Pa.R.Crim.P. 907 Notice of its intent to dismiss Brown’s PCRA

Petition without a hearing.    Brown filed a pro se Objection to the PCRA

court’s Notice. On April 22, 2016, the PCRA court entered an Order denying


2
    See 18 Pa.C.S.A. §§ 2501, 907.
3
  See 18 Pa.C.S.A. § 6105. Brown elected to waive his right to a jury trial
on this charge, so as to prevent the jury from hearing evidence regarding his
status as a former convict.


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Brown’s PCRA Petition, after which Brown filed the instant timely appeal.

The PCRA court did not order Brown to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal.

      Brown, pro se, presents the following issue for our review:

      Whether [Counsel] rendered ineffective assistance by failing to
      properly investigate and present at a PCRA evidentiary hearing[,
      and] utilizing compulsory process if necessary, several
      important, exculpatory witnesses in support of [Brown’s] claim of
      trial counsel’s ineffectiveness for failing to utilize compulsory
      process to compel the attendance at trial of these same
      exculpatory witnesses, including eyewitnesses, to testify
      regarding information contained in audiotaped or written
      statements given to police shortly after the homicide for which
      [Brown] was convicted, which exonerates [Brown] and actually
      implicates two other individuals as having committed the
      homicide for which [Brown] was convicted, including one of the
      main Commonwealth witnesses against him?

Brief for Appellant at 9.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

      Where a PCRA court fails to support its holding with sufficient
      explanations of the facts and law, or fails to provide an adequate
      opinion addressing all of the claims raised in a PCRA petition,
      including factual and credibility disputes, a remand is
      appropriate.

Id. at 410.

      Brown claims ineffective assistance of Counsel and trial counsel.

Generally,    counsel’s   performance   is   presumed   to   be   constitutionally



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adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the defendant. Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa.

2012).   A petitioner claiming ineffective assistance of counsel must plead

and prove that “(1) the underlying legal claim has arguable merit; (2)

counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner suffered prejudice because of counsel’s action or inaction.”      Id.

(applying Strickland v. Washington, 466 U.S. 668, 687 (1984)).4               A

defendant establishes prejudice when he demonstrates “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”      Commonwealth v.

Mallory, 941 A.2d 686, 704 (Pa. 2008). The failure to establish any prong



4
   Brown argues that the Strickland test applies where, as here, the
petitioner alleges ineffective assistance based upon counsel’s failure to
compel a witness’s testimony through the use of compulsory process. Brief
for Appellant at 45-46. However, we observe that in Commonwealth v.
Chmiel, 889 A.2d 501 (Pa. 2005), where the appellant had claimed that
counsel was ineffective for failing to subpoena his daughter during the
penalty phase of his murder trial, our Supreme Court applied the following
five-part test:

      To prevail on a claim of trial counsel's ineffectiveness for failure
      to call a witness, [the] [a]ppellant] must prove: (1) the witness
      existed; (2) the witness was available; (3) trial counsel was
      informed of the existence of the witness or should have known of
      the witness's existence; (4) the witness was prepared to
      cooperate and would have testified on appellant's behalf; and (5)
      the absence of the testimony prejudiced appellant."

Id. at 545-546. Based upon our review, we conclude that Brown is not
entitled to relief, even applying the Strickland test.



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of the test will defeat an ineffectiveness claim. Commonwealth v. Solano,

129 A.3d 1156, 1163 (Pa. 2015).

      Brown claims that Counsel rendered ineffective assistance by “failing

to pursue trial counsel’s ineffectiveness for not calling at trial several highly

credible witnesses and eyewitness to the shooting death of [] Williams ….”

Brief for Appellant at 43. Brown asserts that certain witnesses in the area,

at the time of the shooting, initially denied knowledge of the shooting or

implicated one of two other individuals as Williams’s assailant.      Id. at 48.

According to Brown, the evidence “strongly suggests” that Mynesha Cosmen

(“Cosmen”), who was armed with a black handgun, was the actual

perpetrator. Id. at 49-50.

      In support of this claim, Brown first argues that Counsel rendered

ineffective assistance by not using compulsory process to compel the

testimony of Ta’Kia Edwards (“Edwards”) and Lynda Williams (“Lynda”), the

wife of the victim. Id. at 50. Brown asserts that the testimony of Edwards

and Lynda, regarding their prior statements to police,5 would have


5
   In its Opinion, the PCRA court reviewed this claim and concluded that there
is no record support for it. PCRA Court Opinion, 9/7/16, at 7 (wherein the
PCRA court stated, “[t]his court’s exhaustive review of the records did not
uncover said statements.”). Our review of the record discloses that in his
Objections to counsel’s No-Merit Letter, Brown included the statements
made by Edwards and Lynda. In addition, it appears from the record that on
December 9, 2016, the Commonwealth forwarded to the PCRA court the
statements of Edwards, Lynda, Dante Norman (“Norman”), Francesca
Granados (“Granados”) and Dante Lewis (“Lewis”). The statements were
filed with the PCRA court on December 9, 2016.



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undermined the credibility of Collier’s trial testimony. Id. at 51. Brown also

suggests that their testimony, combined with Collier’s recorded statement,

“would have pointed the finger of blame at [] Loper ….” Id.

      Our review of the record discloses that, Edwards, who was 15 years

old at the time, told police that she was cleaning her car when she heard a

gunshot. Supplemental Summary (Edwards), at 3 (unnumbered). After the

gunshot, Edwards observed a man in a black hoodie run into the back door

of the house at 227 Engle Street.    Id. at 4 (unnumbered). Edwards then

saw a “short and chubby” man wearing a white t-shirt, blue jeans and a

white hoodie leave through the front door of the house. Id. at 5. This man

went to a white car and opened the trunk. Id. At that time, a man known

to Edwards as “Chris” exited through the front door of the same house and

placed a ski mask and gun into the trunk of the car. Id. at 5-6.

      In her statement to police, Lynda identified the man who shot Williams

as wearing a black hoodie. Supplemental Summary (Lynda), at 2. After the

shooting, Lynda observed a black male, wearing a black jacket, drive by her

in a white car. Id. at 8. Lynda, too, saw a man known to her as “Chris” exit

the same back door used by the gunman. Id. at 10.

      Upon review, Brown has failed to establish prejudice resulting from

trial counsel’s failure to present the testimony of Edwards or Lynda.    See

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008) (stating that to

establish prejudice, the petitioner must show that there is a reasonable



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probability that the outcome of the proceedings would have been different

but for counsel’s action or inaction). Neither witness exonerated Brown, or

identified someone other than Brown as the perpetrator.        Accordingly, we

cannot grant Brown relief based upon the failure to present the testimony of

Edwards or Lynda. See Solano, 129 A.3d at 1163 (stating that “[f]ailure to

establish any prong of the test will defeat an ineffectiveness claim.”).

      Brown next argues that Counsel rendered ineffective assistance by not

using compulsory process to compel the testimony of Norman. 6          Brief for

Appellant at 57.     Brown acknowledges that Counsel’s investigator was

unable to locate Norman. Id. However, Brown argues that Counsel should

have presented Norman’s audiotaped statement to police, in Norman’s

absence.    Id. at 58-60.      Brown further argues that Counsel had no

reasonable basis for failing to produce this audiotape, and that Counsel’s

dereliction caused him prejudice. Id. at 60-61.

      In its Opinion, the PCRA court found that Counsel and his investigator

were unable to locate Norman. See PCRA Court Opinion, 9/7/16, at 7. We

cannot conclude that Counsel was ineffective for failing to secure the

testimony of a witness who could not be found. See Solano, 129 A.3d at

1162 (stating that to establish ineffective assistance of counsel, the

petitioner must demonstrate, inter alia, that the claim has arguable merit,

and that there was no reasonable basis for trial counsel’s action or inaction).

6
  In his No-Merit Letter, Counsel indicated that Norman was 12 years old at
the time of the shooting. No-Merit Letter at 2.


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     Our review further discloses that the content of Norman’s audiotaped

statement to police, describing the clothes worn by the shooter, was

presented through the testimony of Chester Police Sergeant John Slowik

(“Sergeant Slowik”). Sergeant Slowik testified at trial that no witness had

specifically identified Cosmen as the perpetrator of the shooting.      N.T.,

9/16/09, at 111-12.   Sergeant Slowik confirmed that a statement by one

witness indicated that the shooter was a black male wearing a white shirt

with a gold design on it. Id. at 113. Sergeant Slowik testified that another

officer later observed Cosmen, at the crime scene, wearing a white shirt with

a gold design on it. Id. at 114. In addition, Sergeant Slowik testified that

subsequently, when officers went to the home of Cosmen, Cosmen answered

the door wearing a white shirt with a gold design. Id. During his closing

argument, trial counsel argued to the jury that a witness had identified the

shooter as wearing the same clothing as worn by Cosmen. Id. at 148.

     Thus, Norman’s audiotaped statement regarding the clothing worn by

the shooter was presented through the testimony of Sergeant Slowik.

Notwithstanding this evidence, the jury found Brown guilty of the above-

stated crimes.   We cannot conclude that trial counsel’s failure to compel

Norman’s testimony, or to present Norman’s audiotaped statement, caused

prejudice to Brown, warranting PCRA relief. See Solano, 129 A.3d at 1162

(stating that prejudice “means demonstrating that there is a reasonable

probability that, but for counsel’s error, the outcome of the proceeding



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would have been different.”). Accordingly, we cannot grant Brown relief on

this claim.

      Brown next argues that trial counsel rendered ineffective assistance by

not using compulsory process to compel the testimony of Granados. Brief

for Appellant at 51. The PCRA court reviewed the record and concluded that

Granados’s testimony would not be exculpatory.          PCRA Court Opinion,

9/7/16, at 9.   The PCRA court explained that Granados had informed the

police that she saw Williams, the victim, arguing with another person prior to

the shooting:

      [Granados] did not say it was [Brown] …. She simply said she
      saw an “individual.” She told police that she heard someone
      say[,] “put it down, put it down” before she heard a gunshot.
      She then came out of her house and saw the decedent lying in
      the alley. The court fails to see the significance of the statement
      “put it down, put it down.” … [Brown] in no way showed how
      the absence of her testimony prejudiced his case….

Id. (citation omitted).    We agree with the PCRA court’s analysis and

conclusion, as stated above, and affirm on this basis with regard to trial

counsel’s failure to present the testimony of Granados. See id.

      Finally, Brown claims that Counsel rendered ineffective assistance for

not using compulsory process to compel the testimony of Lewis.        Brief for

Appellant at 48-49. Our review discloses that Brown first discussed Lewis’s

statement in his Objection to Notice of Intent to Dismiss (“Objections”). In

Objection Number 6, Brown claimed that Counsel was ineffective for failing

to investigate and present the testimony of Lewis.        Objections, ¶ 121.



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Brown argued that Lewis’s statement to police would have impeached the

testimony of Smith. Id., ¶ 122. Brown referred to Lewis’s statement, i.e.,

that Cosmen had left the corner while Smith and Williams were still arguing

and before Smith threw a brick at Williams.      Id., ¶ 123.    According to

Brown’s Objection, this testimony would “lend[] support to the theory that

[Cosmen] had, in fact, r[u]n around the corner of 3rd and Engle Streets to

where Mary and Engle Streets intersect, intending to help his friend Smith

by intercepting Williams.” Id., ¶ 124. Brown raised no claim regarding trial

counsel’s ineffectiveness.

      Our review discloses that Brown failed to establish a reasonable

probability that the outcome of the proceedings would have been different,

had Counsel presented this claim. Rather, Brown argues only that Lewis’s

testimony would have lent support to the statements of other witnesses.

See id. Further, Lewis did not witness the shooting. See id.    Based on the

foregoing, we cannot conclude that Brown established prejudice resulting

from Counsel’s failure to investigate and present this claim.   See Solano,

129 A.3d at 1162. Accordingly, we cannot grant Brown relief on this claim.

      For the foregoing reasons, we affirm the Order of the PCRA court.

      Commonwealth’s Application granted. Motion to file Post-Submission

Communication granted. Order affirmed.

      Judge Stabile joins the memorandum.

      Judge Olson concurs in the result.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2017




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