J-S32023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RALPH ROGERS

                            Appellant                  No. 2790 EDA 2015


                 Appeal from the PCRA Order August 12, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000952-2010


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                   FILED MAY 09, 2016

        Appellant, Ralph Rogers, appeals from the August 12, 2015 order,

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

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        We summarize the relevant procedural history of this case as follows.

On March 4, 2010, the Commonwealth filed an information charging

Appellant with one count each of burglary, criminal trespass, receiving stolen

property, resisting arrest, and disorderly conduct.1 Appellant proceeded to a

jury trial on May 26, 2010, at the conclusion of which the jury found

Appellant guilty of burglary and resisting arrest.          The Commonwealth
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3925(a), 5104, and 5503(a)(4),
respectively.
J-S32023-16


withdrew the remaining three charges before trial.             On July 26, 2010, the

trial   court    imposed   an    aggregate     sentence   of   80   to    264   months’

imprisonment. Appellant filed a timely post-sentence motion on August 2,

2010, which the trial court denied on October 8, 2010.              Appellant filed a

timely notice of appeal, and this Court affirmed the judgment of sentence on

April 17, 2012, and our Supreme Court denied allocatur on August 31, 2012.

Commonwealth v. Rogers, 48 A.3d 479 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 51 A.3d 838 (Pa. 2012).

        On August 26, 2013, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, who filed an amended petition on April 2,

2015.    The Commonwealth filed its answer on June 29, 2015.                 The PCRA

court conducted an evidentiary hearing on July 31, 2015.                 On August 12,

2015, the PCRA court entered an order denying Appellant’s PCRA petition.

On September 10, 2015, Appellant filed a timely notice of appeal.2

        On appeal, Appellant presents the following two issues for our review.

                I.    Was the [PCRA c]ourt in error in denying
                      [Appellant]’s [PCRA petition] alleging that
                      [t]rial [c]ounsel failed to communicate with
                      him prior to the commencement of [t]rial?

                II.   Was the [PCRA c]ourt in error in denying
                      [Appellant]’s [PCRA petition] alleging that
                      [t]rial [c]ounsel did not adequately prepare
                      and did not fully understand the issues nor
____________________________________________
2
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -2-
J-S32023-16


                     strategy that [Appellant] wished to pursue in
                     his defense?

Appellant’s Brief at 4.

       We begin by noting our well-settled standard of review. “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. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”             Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).               “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”                Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       The Sixth Amendment to the Federal Constitution provides, in relevant

part, “[i]n all criminal prosecutions, the accused shall enjoy the right … to

have the Assistance of Counsel for his defence.”3            U.S. Const. amend. VI.



____________________________________________
3
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
(Footnote Continued Next Page)


                                            -3-
J-S32023-16


The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.           See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

      In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

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

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”       Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”        Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.

Pennsylvania, 135 S. Ct. 50 (2014).

      Although couched as two issues, we address both of Appellant’s issues

together, because his brief states that he relies on his first issue in support

of his second issue.         Appellant’s Brief at 11.   Appellant avers that trial
                       _______________________
(Footnote Continued)

Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



                                            -4-
J-S32023-16


counsel was ineffective because he “did not communicate with [Appellant]

prior to the commencement of [t]rial.” Id. at 8. In Appellant’s view, “[t]he

only time that [Appellant] talked to his attorney after the [p]retrial

[c]onference was a day or two before [t]rial and the only conversation then

was [trial counsel] informing his client that [t]rial was starting on the 27 th.”

Id.    Appellant purports to rely on our Supreme Court’s decision in

Commonwealth v. Brooks, 839 A.2d 845 (Pa. 2003).

      In Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super. 2012) (en

banc), appeal denied, 63 A.3d 1245 (Pa. 2013), this Court discussed Brooks

and applied it to a similar claim to the one in this case.

            In Brooks, the appellant was convicted of first-
            degree murder and sentenced to death following a
            trial where he elected to proceed pro se. Brooks,
            supra at 247. At the beginning of jury selection, the
            appellant informed the trial court that he wished to
            represent himself because his attorney had not met
            with him at any time up to that point. Id. at 247
            n.3. His attorney testified that he could only recall
            one telephone conversation with his client prior to
            trial, and that lasted no more than half an hour. Id.
            at 249. His attorney also testified that he did not
            meet with Brooks while he was in prison because he
            was not “looking forward to spending any time alone
            with Mr. Brooks.”       Id.   In finding that Brooks’
            attorney had no reasonable basis for not meeting
            with his client, the Court concluded the following.

                  General fear of a potential conflict in the
                  lawyer-client relationship and a busy schedule
                  simply cannot serve as a reasonable basis for
                  failing to have personal contact with a client
                  prior to that client’s trial on capital charges.
                  To the contrary, failure to do so is ‘simply an


                                      -5-
J-S32023-16


                 abdication’ of the most basic expectations of
                 defense counsel in a capital case.

           Id. at 250. The Court held that “the very nature of a
           capital case ... clearly necessitates at least one in-
           person meeting between a lawyer and his client
           before trial begins.” Id. at 249. Moreover, our
           Supreme Court noted “no lawyer, no matter how
           talented and efficient, can possibly forge a
           meaningful relationship with his client and obtain
           adequate information to defend that client against
           first-degree murder charges in a single thirty-minute
           telephone conversation.” Id.

Id. at 243. Applying our understanding of Brooks in Johnson, this Court

concluded the defendant was not entitled to a new trial.

           [Johnson] avers that because [trial counsel] failed to
           meet with him face-to-face until the eve of his trial,
           he is entitled to relief under Brooks. We disagree.
           Our Supreme Court emphasized in Brooks that
           Brooks’ attorney failed to meet with his client “at
           all.” [Brooks, supra] at 248. In this case, [trial
           counsel] represented [Johnson] at his preliminary
           hearing and criminal arraignment, conducted a face-
           to-face meeting at his preliminary hearing,
           conducted another face-to-face meeting at the prison
           with [Johnson] prior to trial, and performed at least
           one telephone consultation. PCRA Court Opinion,
           7/7/10, at 11–12, citing N.T., 3/6/06, at 48–49;
           N.T., 3/6/06, at 73–74. While we acknowledge that
           more contact may have been advisable, we disagree
           with [Johnson] that the length and frequency of the
           consultations alone can support a finding of
           ineffectiveness. We further decline to read Brooks
           so rigidly that we are precluded from evaluating the
           substantive impact of the consultations [trial
           counsel] did perform.




                                    -6-
J-S32023-16


Id. at 243-244. Turning to our evaluation of trial counsel’s performance, we

noted that even with the admittedly limited meetings, trial counsel ably put

on a defense for Johnson.

                   The      record   in   this  case      establishes
            unequivocally that [trial counsel] retained an
            investigator who testified at the evidentiary hearings
            that he had interviewed numerous witnesses prior to
            trial[,] presumably at [trial counsel]’s request[,] and
            that five of those witnesses end[ed] up testifying at
            trial for the defense. Even the alleged alibi witness,
            Ronald Crawford, who did not appear to testify at
            trial, was the subject of extensive efforts on the part
            of the investigator to secure him as a defense
            witness. In addition, the record clearly establishes
            that     [trial   counsel]  subjected     all    of   the
            Commonwealth[’s] witnesses to meaningful and
            effective scrutiny and cross-examination.

Id. at 244, quoting PCRA Court Opinion, 7/7/10, at 13–14. Therefore, we

concluded that Brooks did not entitle Johnson to a new trial. Id.

      Consistent with Johnson, the PCRA court declined to apply Brooks in

this case, based on the following evaluation of trial counsel’s performance.

                  [Trial counsel] … testified at the evidentiary
            hearing about his past pre-trial, in person meetings
            and relevant discussions with [Appellant].        [Trial
            counsel] confirmed that he met with [Appellant] at
            least two (2) times prior to trial.        Similar to
            [Appellant’s] testimony, [trial counsel] testified that
            the primary focus of these communications included
            the    following:    [Appellant’s]   past     burglary
            convictions; [t]he impact of these previous
            convictions at bar; [Appellant’s] decision to refrain
            from testifying at trial; [p]otential trial defenses;
            [Appellant’s] sentencing exposure if he were found
            guilty of these charges; and [Appellant’s] choice to
            not [] present any defense witnesses.             [Trial
            counsel] additionally described that if he elected to

                                      -7-
J-S32023-16


             testify at trial[,] his past conviction(s) for burglary
             would be admitted for impeachment purposes
             against him.        [Appellant] and his trial lawyer
             determined from these discussions that the best
             available defense and consistent with [Appellant’s]
             version of the events was to attack the victim’s
             credibility based on his pending, criminal drug
             charges together with use of the prosecution’s
             evidence as material to suggest the charged event
             was something other than a burglary.

                                       …

                   In his witness appearance at the collateral
             hearing, [trial counsel] testified that stemming from
             his pre-trial discussions with [Appellant,] he well
             appreciated that [Appellant]’s contention [was] that
             the Commonwealth’s trial allegations stemmed from
             a drug deal gone “awry” and [that counsel] had
             determined as well as communicated to [Appellant]
             the trial defense would be an incorporation of the
             drug deal “gone bad” assertion of [Appellant] in
             combination with a vigorous attack on the victim’s
             credibility, including but not limited to confronting
             the victim when testifying about his then having a
             possession with intent to deliver prosecution pending
             against him. Wholly consistent with that which he
             discussed pre-trial with [Appellant], [trial counsel]
             mounted at trial such a defense.

PCRA Court Opinion, 12/4/15, at 10-11 (internal citations and footnote

omitted).

      Our review reveals that the PCRA court’s findings are supported by the

record.     Trial counsel testified at the PCRA hearing that he met with

Appellant on two occasions, once at the pre-trial conference and one other

time two days before trial. N.T., 7/31/15, at 57. Trial counsel testified that

their meetings consisted of discussing Appellant’s prior burglary convictions,


                                      -8-
J-S32023-16


and his choice not to testify for fear that those prior convictions would have

become admissible against him.         Id. at 48-49.    The two also discussed

Appellant’s version of events it was “a drug deal gone bad.” Id. at 49. Trial

counsel also iterated that Appellant did not give him the names of any

witness that Appellant wished to subpoena for trial. Id. at 50. They also

discussed that the victim had a pending drug prosecution at the time, which

they planned to bring up at trial as an attack on the victim’s credibility. Id.

at 49.

         Turning to the trial transcript, we note that trial counsel successfully

argued motions in limine to bring up the victim’s pending drug prosecution,

and preventing the Commonwealth from introducing any prior bad acts.

N.T., 5/26/10 (Robing Room Conference) at 11-15, 17-18. During trial, trial

counsel immediately brought up the victim’s pending prosecution in his

opening statement. N.T., 5/26/10 (Trial), at 123. In addition, trial counsel

cross-examined the victim on the drug issue in this case. Id. at 167-172.

This was part of trial counsel’s lengthy cross-examination of the victim. See

generally id. at 149-173, 189-193, 199-204.

         As we explained in Johnson, “[w]e … decline to read Brooks so

rigidly that we are precluded from evaluating the substantive impact of the

consultations [trial counsel] did perform.” Johnson, supra at 243. Turning

to that substantive impact, it is evident that trial counsel did mount a

defense at trial to the jury.        Appellant’s brief does not suggest what


                                       -9-
J-S32023-16


additional things trial counsel should have done. Although Appellant’s brief

argues that he gave names of certain witnesses to trial counsel to subpoena

in his defense, trial counsel denied the allegation, and the PCRA court found

trial counsel’s testimony credible.     Appellant’s Brief at 11; PCRA Court

Opinion, 12/4/15, at 24.     As we have explained, the record supports the

PCRA court’s factual findings and credibility determinations.   Furthermore,

consistent with Johnson, the PCRA court’s legal conclusion that Brooks

does not necessitate granting Appellant relief is correct. Therefore, both of

Appellant’s issues on appeal fail.

      Based on the foregoing, we conclude the PCRA court properly denied

Appellant’s PCRA petition.     See Fears, supra.     Accordingly, the PCRA

court’s August 12, 2015 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




                                      - 10 -
