J-S05028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BOBBIE L. BROWN

                            Appellant                 No. 965 MDA 2016


                   Appeal from the PCRA Order May 31, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005328-2007


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                            FILED MARCH 03, 2017

        Appellant, Bobbie Brown, appeals from the order dismissing his

petition pursuant to the Post Conviction Relief Act (“PCRA”). Brown argues

that the PCRA court erred in concluding that he had not established that his

trial counsel had been ineffective in failing to cross-examine a witness about

his prior crimen falsi convictions. After careful review, we conclude that the

PCRA court did not abuse its discretion in finding that Brown had not

established that he suffered prejudice from trial counsel’s failure, and

therefore affirm.

        This case returns to us after a previous panel remanded this case for a

hearing on two issues raised by Brown. See Commonwealth v. Brown,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05028-17


No. 94 MDA 2013 (Pa. Super., filed 10/18/13) (unpublished memorandum).

For a detailed recitation of the facts and procedural history of this case, we

refer the interested reader to that memorandum. In this appeal, Brown

raises only one of the issues for which the case was remanded for further

hearings.

       By way of summary, a jury convicted Brown of the first-degree murder

of Eric Cooper.1 At trial, Brown pursued a theory that he had shot Eric

Cooper in self-defense after Eric Cooper had initiated a physical altercation

with Brown. One Commonwealth witness, the victim’s cousin Michael

Cooper, had given police statements that supported this theory. However,

on direct examination, he did not mention that his cousin had initiated a

physical altercation with Brown. On cross-examination, he denied that he

had ever told investigators that his cousin had punched Brown.

       On    cross-examination,       Cooper     admitted   to   various   credibility-

damaging falsehoods. Of most import, he admitted that he had told an

investigator that the shooter could be identified from the injuries his cousin




____________________________________________


1
  For ease of reading, all references to “Cooper” in this memorandum will
mean Michael Cooper, Eric’s cousin. Eric Cooper will be referenced by his full
name.




                                           -2-
J-S05028-17


had inflicted prior to the shooting. However, counsel did not cross-examine

Cooper regarding his prior conviction for retail theft.2

       Brown claimed that this failure rendered trial counsel’s performance

ineffective. The PCRA court, in its initial review of Brown’s claim, ruled that

evidence of a prior conviction for crimen falsi would have been “merely

cumulative and unnecessary,” as trial counsel “adequately impeached

Michael Cooper’s credibility.” In reviewing this decision on appeal, the prior

panel of this Court disagreed, and concluded that “an evidentiary hearing is

necessary to assess the alleged ineffectiveness of trial counsel.”

       On remand, the PCRA court held a hearing on the issue of trial

counsel’s failure to cross-examine             Cooper on his prior   crimen falsi

convictions. Trial counsel testified that he pursued a theory of self-defense

at trial. See N.T., PCRA Hearing, 9/1/15, at 9. He believed that Cooper was

an important witness in establishing a self-defense theory. See id., at 14.

He stated that he had intended to discredit Cooper’s direct testimony. See

id., at 18. If he had known about Cooper’s prior conviction, he would have

used it. See id., at 24.
____________________________________________


2
  In his initial PCRA petition, Brown had asserted that Cooper had prior
convictions for forgery, tampering with records or identification, and passing
bad checks. Upon remand, the Commonwealth discovered that this criminal
record pertained to another individual named Michael Cooper. However, the
Commonwealth’s investigation discovered that the relevant Michael Cooper
had a prior conviction for first-degree misdemeanor retail theft. The parties
subsequently stipulated that this conviction was the only prior crimen falsi
conviction for the relevant Michael Cooper.



                                           -3-
J-S05028-17


        Trial counsel also testified that the video recording of the shooting that

the Commonwealth presented at trial was damaging to his theory of self-

defense. See N.T., PCRA Hearing, 4/17/14, at 67.3 “Who knows inside the

mind of a juror what they say. You know, again, [it] come[s] back to it was

on the video.” N.T., PCRA Hearing, 9/1/15, at 24. He further admitted that

the testimony of an unrelated eyewitness to the shooting, Paula Williams,

had hurt his case. See N.T., PCRA Hearing, 4/17/14, at 68.

        Williams testified at trial that she was coming home from church when

she pulled up behind Brown’s vehicle. She watched as Eric Cooper

approached the driver-side window, raised his right hand and put it through

the open window. After he withdrew his hand, he fell to the ground, face-

first. She then watched as a hand from inside the vehicle reach out towards

Eric Cooper’s prone body. She observed two flashes from the hand before

Brown’s vehicle pulled away.

        The Commonwealth also presented the jury with the testimony of

Wayne Ross, M.D., a forensic pathologist. Dr. Ross testified that Eric Cooper

had suffered a single gunshot wound to the front of his body, and five in his

back.


____________________________________________


3
  We are unable to locate the PCRA court’s quotation “the video [of the
shooting] killed us” on the pages cited by the PCRA court. However, a review
of the cited pages indicates that trial counsel did believe that the video was
strong evidence, and damaging to his case.



                                           -4-
J-S05028-17


       After reviewing this evidence, the PCRA court concluded that Brown

had failed to establish trial counsel’s ineffectiveness, and this timely appeal

followed.

       On appeal, Brown contends that the PCRA court erred in concluding

that he hadn’t established the ineffectiveness of trial counsel. “On appeal

from the denial of PCRA relief, our standard and scope of review is limited to

determining whether the PCRA court’s findings are supported by the record

and without legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345

(Pa. 2013) (citation omitted). “[Our] 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   PCRA   court   level.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).

       Counsel is presumed effective; thus, an appellant has the burden of

proving otherwise. See Commonwealth v. Wright, 961 A.2d 119, 148 (Pa.

Super. 2004). “In order for Appellant to prevail on a claim of ineffective

assistance of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which … so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.

Super. 2005) (citation omitted).

       To prevail on his ineffectiveness claims, Appellant must plead
       and prove by a preponderance of the evidence that (1): the

                                       -5-
J-S05028-17


      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction. With
      regard to the [reasonable basis] prong, we will conclude that
      counsel’s chosen strategy lacked a reasonable basis only if
      Appellant proves that an alternative not chosen offered a
      potential for success substantially greater than the course
      actually pursued. To establish the [prejudice] prong, Appellant
      must show that there is a reasonable probability that the
      outcome of the proceedings would have been different but for
      counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (internal quotation

marks and citations omitted).

      In the present case, the prior panel of this Court concluded that Brown

had established that there was arguable merit to his claim of trial counsel

ineffectiveness, and remanded the case for a hearing on the remaining

prongs. We further conclude that, based upon the testimony of trial counsel

that he would have used the prior crimen falsi conviction if he had known

about it, he did not have a reasonable trial strategy for not discovering or

using the conviction to cross-examine Michael Cooper.

      However, we conclude that the PCRA court did not abuse its discretion

in concluding that Brown had not established prejudice - that there was a

reasonable probability that the outcome of the proceedings would have been

different but for the failure of trial counsel to use the prior crimen falsi

conviction. As noted, Brown’s defense to the charges centered on the theory

that he acted in justifiable self-defense.




                                      -6-
J-S05028-17


     Once a justification defense is properly raised, “the Commonwealth

bears the burden to disprove such a defense beyond a reasonable

doubt.”   Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001)

(citations omitted). The Commonwealth sustains its burden if “it establishes

at least one of the following: 1) the accused did not reasonably believe that

he was in danger of death or serious bodily injury; or 2) the accused

provoked or continued the use of force; or 3) the accused had a duty to

retreat and the retreat was possible with complete safety.” Commonwealth

v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted).

“It remains the province of the [finder of fact] to determine whether the

accused’s belief was reasonable, whether he was free of provocation, and

whether he had no duty to retreat.” Id. (citation omitted).

     Faced with the video recording of the shooting, Williams’s testimony

that Eric Cooper was prone when Brown fired at least two shots, and Dr.

Ross’s testimony that Eric Cooper suffered five gunshots to his back, we

conclude that prejudice was not established. Even if the jury had believed

Cooper’s prior statement that his cousin had provoked a physical altercation

with Brown, it is highly unlikely that they would have believed that Brown

did not continue the use of deadly force beyond what was necessary for self-

defense. Nor is it likely that they would have found that Brown availed

himself of the possibility of retreating from the altercation started by Eric

Cooper. Thus, we conclude that the PCRA court did not abuse its discretion


                                    -7-
J-S05028-17


in concluding that Brown had not established that he was prejudiced by trial

counsel’s failure to attack Cooper’s credibility with the prior crimen falsi

conviction.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2017




                                     -8-
