J-A01040-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WILLIE LEE BROOKS

                            Appellant                   No. 1135 EDA 2012


            Appeal from the Judgment of Sentence October 25, 2011
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000811-2009


BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.                                 FILED JULY 07, 2015

        This matter comes before us on remand from the Pennsylvania

Supreme Court for consideration of Willie Lee Brooks’ appellate claims that

were not addressed by this Court in our decision to grant a new trial, a

decision we made on the grounds that the trial judge erred in denying a

continuance request made by Brooks on the day of trial in order to represent

himself pro se.      After careful review, we affirm the judgment of sentence

imposed on Brooks by the Court of Common Pleas of Delaware County.

        The trial court noted the relevant facts as follows:




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        On January 30, 2009, the Radnor Police charged [Brooks] with
        [a] shooting. After a preliminary hearing, [Brooks] was bound
        over for trial. This [c]ourt appointed an attorney to represent
        him. The pretrial conference was repeatedly continued, and a
        trial date [of] July 18, 2011 was continued until August 15,
        2011.

        On August 16, 2011, [Brooks] appeared and asked for leave to
        represent himself and for another continuance to prepare his
        defense. After a colloquy, this Court concluded that the request
        was a delay tactic, so it denied the continuance request.
        [Brooks] agreed to allow appointed counsel to continue his
        representation. The voir dire of prospective jurors then began.
        After the completion of questioning, the Assistant District
        Attorney exercised six peremptory challenges. A jury of 12 with
        two alternates was seated.

        The next day, on August 17, 2011, defense counsel made an
        objection to the jury selection on the ground that there were
        three African Americans in the pool. One was stricken for cause.
        [Defense counsel] alleged that the ADA improperly struck the
        remaining two on racial grounds. This Court denied the motion.

Trial Court Opinion, 5/17/12, at 1-2 (citations omitted).

        At the conclusion of trial, Brooks was convicted of four counts of

criminal attempt to commit homicide,1 four counts of aggravated assault,2

one count of possession of an instrument of crime,3 one count of loitering

and prowling at night,4 and one count of persons not to possess firearms.5 A
____________________________________________


1
    18 Pa.C.S. § 901.
2
    18 Pa.C.S. § 2702.
3
    18 Pa.C.S. § 907.
4
    18 Pa.C.S. § 5506.
5
    18 Pa.C.S. § 6105.



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post-sentence motion was filed and denied.     Brooks then filed a notice of

appeal to this Court.

      This Court reversed the trial court in an opinion holding that it was

error to deny Brooks’ request for a continuance to allow him to represent

himself. This Court reasoned that Brooks’ request was timely because it was

made prior to jury selection. The opinion indicated that the trial court has

the responsibility to determine if a continuance in this type of matter is for

the legitimate purpose of preparing a defense or if it is merely intended to

obstruct the process of justice.   This Court reversed the trial court on the

grounds that there was little support in the record for the trial court’s

determination that Brooks’ request was made merely to delay his trial.

      The Commonwealth filed a petition for allowance of appeal, which the

Supreme Court granted. Upon review, the Supreme Court determined that

this Court’s

      approach was problematic to the extent it could be read as:
      creating a presumption that a last-minute continuance request to
      proceed pro se should be granted, and to the extent that the
      decision appears to assign a burden upon the trial court to place
      “sufficient evidence” of “compelling reasons” on the record to
      support a conclusion that a defendant seeking a continuance in
      order to represent himself was engaged in an attempt to delay
      the proceedings.

Commonwealth v. Brooks, 104 A.3d 466, 479 (Pa. 2014). The Supreme

Court went on to hold that the record and circumstances “are sufficient to

make clear that the trial court’s denial of the continuance request was not an

abuse of discretion.” Id.


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         Thus, we turn to Brooks’ remaining appellate issues, which were not

addressed previously by this Court.              Brooks raises two additional issues.

The first is a Batson6 claim that the prosecutor improperly removed African

Americans from the jury pool, resulting in an all-white jury.              Secondly,

Brooks argues that the trial court erred in ruling that the Commonwealth

could introduce evidence of his past criminal convictions should he testify at

trial.

         We analyze a Batson claim pursuant to the following framework:

         First, the defendant must make a prima facie showing that the
         circumstances give rise to an inference that the prosecutor
         struck one or more prospective jurors on account of race;
         second, if the prima facie showing is made, the burden shifts to
         the prosecutor to articulate a race-neutral explanation for
         striking the juror(s) at issue; and third, the trial court must then
         make the ultimate determination of whether the defense has
         carried its burden of proving purposeful discrimination. Batson,
         476 U.S. at 97.

                                               ...

         The second prong of the Batson test, involving the prosecution’s
         obligation to come forward with a race-neutral explanation of the
         challenges once a prima facie case is proven, “does not demand
         an explanation that is persuasive or even plausible.” Purkett v.
         Elem, 514 U.S. 765 (1995). Rather, the issue at that stage “is
         the facial validity of the prosecutor’s explanation. Unless a
         discriminatory intent is inherent in the prosecutor’s explanation,
         the reasons offered will be deemed race neutral.” Id.

         If a race-neutral explanation is tendered, the trial court must
         then proceed to the third prong of the test, i.e., the ultimate
         determination of whether the opponent of the strike has carried
____________________________________________


6
    See Batson v. Kentucky, 476 U.S. 79 (1986).



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      his burden of proving purposeful discrimination. Purkett, 514
      U.S. at 768. It is at this stage that the persuasiveness of the
      facially neutral explanation proffered by the Commonwealth is
      relevant.

Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2009). The “trial court’s

decision on the ultimate question of discriminatory intent represents a

finding of fact of the sort accorded great deference on appeal and will not be

overturned unless clearly erroneous.”     Commonwealth v. Williams, 980

A.2d 510, 531 (Pa. 2009).

      Additionally, an appellant must provide a “full and complete” record

regarding the asserted Batson violation, including “identifying the race or

ethnicity of the venirepersons stricken by the Commonwealth, the race of

prospective jurors acceptable to the Commonwealth but stricken by the

defense,   and    the   racial   composition   of   the   final   jury   selected.”

Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004).

      Here, defense counsel made a Batson challenge after the voir dire

process concluded, but before the jury was sworn.         The challenge alleged

that Assistant District Attorney Michael Dugan used peremptory strikes to

remove two African Americans from the jury pool such that the jury was

entirely white.   The trial court denied the motion. The trial court also

conducted a post-trial Batson hearing, during which Dugan testified to his

reasoning for exercising each of his peremptory strikes.

      Dugan indicated that he only specifically recalled one strike against an

African American, the individual assigned to be Juror #23. That individual

previously had been charged by the Commonwealth on a gun charge, and

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the individual stated he had been charged unfairly. Dugan indicated that he

exercised a peremptory strike against the individual because Dugan did not

believe the person could be fair.        Dugan testified to his reasons for

exercising the remaining peremptory strikes; each reason was a race-neutral

reason, a fact which Brooks acknowledges.        See Brief of Appellant, at 34

(“Under the standards established in cases interpreting Batson, it is

conceded that the [] explanations of the assistant district attorney’s strikes

of African-Americans are race-neutral.”)

      Thus, whether the instant Batson claim has merit depends upon

whether Brooks has carried his burden of proving purposeful discrimination.

Notably, the trial court indicated that “the record is confused as to the racial

composition of the jury panel and the individuals actually chosen.”         Trial

Court Opinion, 5/17/12, at 3.      Indeed, Defense counsel did not keep a

record of the specific racial composition of either the potential or chosen

jurors as mandated in Uderra, supra. As a result, neither the prosecution,

the defense, nor the trial court can recall which potential juror, other than

Juror #23, was African American or why he or she was struck.

      Ultimately, Dugan can specifically remember using a peremptory strike

for Juror #23, but Brooks has presented nothing to demonstrate any bias on

Dugan’s part in doubting that Juror #23 could be fair.         As to the other

potential African American juror, it is impossible for this Court to specifically

review whether purposeful discrimination has been shown since no adequate

record was kept to identify the individual in question. Indeed, Brooks’ entire

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Batson argument is lacking due to trial counsel’s failure to keep any sort of

pertinent record and because it is solely premised on the argument that

while two African Americans were available to be on the jury, neither was

chosen.7

       Moreover, the trial court observed Dugan and found his explanations

to be credible based upon his demeanor and sincerity.         Thus, we find no

reason to disturb the findings of the trial court and conclude that the

Commonwealth’s peremptory strikes were properly used regarding the two

potential African American jurors.

       Next, Brooks argues that the trial court improperly held that his prior

crimen falsi convictions would have been admissible at trial for impeachment

purposes if Brooks had taken the stand.8         Under Pa.R.E. 609, convictions

involving dishonesty or false statement are generally admissible for the

purpose of attacking the credibility of any witness. However,

____________________________________________


7
  Initially, four African Americans were in the jury pool. Besides the two that
are the focus of the instant Batson claim, one was removed from the pool
for cause and another became an alternate juror whose services ultimately
were not needed.
8
  This Court has specifically held that a defendant may challenge the trial
court’s impeachment ruling even though he did not testify at trial. See
Commonwealth v. Jackson, 561 A.2d 335, 338 (Pa. Super. 1989),
affirmed, Commonwealth v. Jackson, 585 A.2d 1001 (Pa. 1991) (refusing
to adopt ruling in Luce v. United States, 469 U.S. 38 (1984), which
provides that under Federal Rule of Evidence 609, a defendant cannot
challenge a ruling permitting impeachment unless he takes the stand and is
impeached).



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        [e]vidence of a conviction under this rule is not admissible if a
        period of more than ten years has elapsed since the date of the
        conviction or of the release of the witness from the confinement
        imposed for that conviction, whichever is the later date, unless
        the court determines, in the interests of justice, that the
        probative value of the conviction substantially outweighs its
        prejudicial effect. However, evidence of a conviction more than
        ten years old as calculated herein is not admissible unless the
        proponent gives to the adverse party sufficient advance written
        notice of intent to use such evidence to provide the adverse
        party with a fair opportunity to contest the use of such evidence.

Pa.R.E. 609(b).9

        The crimen falsi convictions relevant to the instant matter arose when

Brooks entered nolo contendere pleas in 1992 to charges for burglary,10

theft by unlawful         taking,11   receiving   stolen property,12   and criminal
____________________________________________


9
  This version of Rule 609(b) was in effect at the time of trial. In 2013, a
new version of the rule was promulgated, which retains similar language, as
follows:

        (b) Limit on Using the Evidence After 10 Years. This
        subdivision (b) applies if more than 10 years have passed since
        the witness's conviction or release from confinement for it,
        whichever is later. Evidence of the conviction is admissible only
        if:

        (1) its probative value substantially outweighs its prejudicial
        effect; and

        (2) the proponent gives an adverse party reasonable written
        notice of the intent to use it so that the party has a fair
        opportunity to contest its use.
10
     18 Pa.C.S. § 3502.
11
     18 Pa.C.S. § 3921.
12
     18 Pa.C.S. § 3925.



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trespass.13    Trial counsel indicated that Brooks was incarcerated on these

charges until sometime in 1999, although the exact date of his release is not

a matter of record in this case. It was not disputed at trial that more than

ten years had elapsed from the time Brooks was released from incarceration

for the relevant crimes to the date that trial took place.

        The exception in Rule 609(b) to the admissibility of crimen falsi

convictions provides that the probative value must outweigh the prejudicial

effect of such convictions.        Additionally, sufficient advance written notice

must be provided to prevent unfair surprise regarding the intended use of

such evidence.        Here, Brooks makes no argument about whether the

probative value outweighs the prejudicial effect of his prior convictions.

Instead, the argument in Brooks’ appeal is narrowly focused on his

contention that written notice of the Commonwealth’s intent to use his prior

convictions was not provided to him.

        Brooks admits that there is some ambiguity within the rule regarding

notice, since the rule specifies that written notice must be provided but

indicates that the intended effect of the written notice is to provide a “fair

opportunity” to contest the use of criminal convictions more than ten years

old.     See Brief of Appellant, at 41.          However, Brooks maintains his

contention that the trial court’s determination that the prior convictions


____________________________________________


13
     18 Pa.C.S. § 3503.



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would be admissible for impeachment purposes without advance written

notice, regardless of the context, was a fundamental error.

      This Court has considered a matter similar to the instant matter, in

which the appellant made a “technical Pa.R.E. 609(b) argument, namely,

that the trial court erred in permitting the old crimen falsi conviction when

the Commonwealth never provided Appellant ‘with advance written notice of

its intent to use such evidence,’ thus depriving him of ‘a fair opportunity to

contest the use of such evidence.’”      Commonwealth v. Palo, 24 A.3d

1050, 1057 (Pa. Super. 2011). This Court rejected this argument, holding

that Palo could not reasonably argue that he lacked a fair opportunity to

contest the use of his prior convictions, particularly where the trial court

conducted an in camera hearing and defense counsel thoroughly argued his

case to exclude the evidence.       Id. at 1058 (citing United States v.

Sloman, 909 F.2d 176, 180 (6th Cir. 1990) (upholding use of stale

conviction under identical F.R.E. 609 provision until after witness took stand;

written notice not required because counsel was not unfairly surprised)).

      Here, while written notice specifically informing Brooks of the

Commonwealth’s intent to use Brooks’ prior convictions was not provided,

the Commonwealth provided a written copy of Brooks’ criminal record to

defense counsel well in advance of the trial.     Thus, there was no unfair

surprise   regarding   the   existence   of   Brooks’   criminal   convictions.

Futhermore, the trial court held an in camera hearing prior to the defense

putting on its case, during which defense counsel was permitted to argue

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against the use of Brooks’ prior convictions. Therefore, Brooks was provided

with a “fair opportunity” to contest the use of his prior convictions, in

accordance with the thrust of Pa.R.E. 609(b). Palo, supra.

      Additionally, this Court has indicated that where the time between the

release of a defendant for a prior conviction and the time of trial on a new

charge is “artificially increased,” the prior conviction retains relevance. See

Commonwealth v. Harris, 884 A.2d 920, 925-26 (Pa. Super. 2005).             In

Harris, the defendant was charged with a crime within ten years of release

for prior crimen falsi convictions, but trial was delayed for several years.

Similarly, in the instant matter, Brooks’ was charged with a crime within ten

years of his release, his trial was delayed significantly, and he also had been

in hiding for approximately six months prior to his capture.     Although the

Harris Court did not consider the issue of whether appropriate written notice

was necessary because the issue was not raised at trial, the Court’s

treatment of the “artificial delays” indicates that prior convictions in that

context are likely to be more probative than prejudicial and thus should be

admitted into evidence for impeachment purposes. See id.

      Ultimately, Brooks’ sole contention is that written notice was not

provided regarding the Commonwealth’s intent to use Brooks’ prior

convictions for impeachment purposes. Significantly, no argument has been

provided to indicate that Brooks’ prior convictions are more prejudicial than

probative, other than mere references to the convictions being more than

ten years old. Indeed, despite an in camera opportunity to do so, nothing

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was argued before the trial court, and nothing has been argued in this

appeal, to demonstrate any undue prejudice that would result from

admitting Brooks’ prior convictions into evidence.   Thus, we find that any

error in ruling that Brooks prior crimen falsi convictions would have been

admissible is harmless error.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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