J-S28022-16

                                  2016 PA Super 176



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD BROWN

                            Appellant                  No. 2923 EDA 2014


                  Appeal from the PCRA Order October 3, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0808071-2004


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

OPINION BY LAZARUS, J.:                               FILED AUGUST 12, 2016

        Richard Brown appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 Because

trial counsel failed to have even one face-to-face meeting with Brown prior

to his capital trial, we are constrained to deem such conduct constitutionally 2
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.    Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
2
  The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” Moreover, Article I, Section 9 of the
(Footnote Continued Next Page)
J-S28022-16



ineffective representation pursuant to Commonwealth v. Brooks, 839 A.2d

245 (Pa. 2003), as it relates to the facts of this case. Thus, we reverse and

remand for a new trial.

      The trial court set forth the relevant facts of the case as follows:

      Brian Prout (also identified on this record as AZ), Christopher
      Smith (Smith is also identified as Jug-Head), and Vincent
      Smithwick (hereinafter Smithwick or also identified as Scooter)
      were paid enforcers who killed for profit at the command of
      Richard Brown (also referred to as Brown, or identified as
      Manny-Boo). In a conversation with Smithwick on February 7,
      2003, Brown discussed his plan to kill Anthony Harris (Harris, or
      the decedent), and Richard Powell (Harris's [sic] best friend;
      hereinafter Powell). Brown specifically told Smithwick, ‘we goin'
      to grab Harris.’ After finalizing the plan, Brown[,] Smithwick,
      Prout, and Smith got into Brown's car to set out to find Harris.
      Brown arrived at the home of Tonya Brister and Frank Tompkins
      at 3911 Fairmount Avenue in the City and County of
      Philadelphia. He arrived at the house unannounced dressed in
      all black and wearing black gloves. Brown talked with Tiesha
      Brister, Tonya’s sister while three (3) to four (4) other males
      waited outside. After a few minutes, Brown left the house and
      Tiesha quickly closed and locked the door behind him. Later,
      Powell was approached by Brown on the street who told him, “I
      need you to take a ride with me.” Powell stated he couldn't
      because he had to pick up his wife. Powell also spoke with
      Smith, who at the time was wearing a bulletproof vest. Powell
      later saw Harris and asked him if he had plans for the night.
      Harris said he was going to Little Frank's house [to] smoke
                       _______________________
(Footnote Continued)

Pennsylvania Constitution provides in relevant part that “[i]n all criminal
prosecutions the accused hath a right to be heard by himself and his
counsel[.]” The Pennsylvania Supreme Court has held that with respect to
the right to counsel, Article I, Section 9 provides the same level of protection
to criminal defendants as does the Sixth Amendment. See Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987).




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J-S28022-16


     weed. Powell warned Harris to be careful. When Harris arrived at
     Tonya's he was informed that Brown had been by the house
     earlier asking questions. Frank Tompkins (Tonya's boyfriend);
     Ronnie-Ron (Harris’ cousin), Tonya, Tiesha, and Harris went
     upstairs to a second floor bedroom to smoke marijuana and
     watch television. A few moments later, someone knocked on the
     front door downstairs. One of the younger children in the house
     yelled up to Harris to come to the door. After speaking with the
     visitor, he returned upstairs. Someone knocked on the door a
     second time, again asking for Harris, this time he remained
     downstairs for about fifteen (15) minutes. Harris returned to the
     bedroom and began pacing by the window. Harris turned to the
     others in the bedroom and said, “I'll be back, don't smoke my
     weed.” Harris threw his hat on the bed and said, “If my girl
     calls, tell her you got my phone, I went to the store.” At
     approximately 9:30 pm, Harris left his coat, cell phone, hat,
     and walked out the front door.
     A short while later, Smith drove Harris to see Brown. Before
     Harris could exit the car, Prout tapped his AK-47 on Harris’s [sic]
     window, and told him to get out. When Harris got out and
     attempted to run, Prout shot him. Harris, still conscious, was
     lifted into the back seat of a red Taurus wagon driven by
     Smithwick. Hyneith Jacobs (identified on this record as Neef-
     Buck or Jacobs) was across the street at the time and saw Prout
     shoot Harris. Brown saw Jacobs and threatened him to ensure
     that he did not [] talk to the police. Not willing to take any
     chances on disclosure, Brown forced him to ride along and
     participate in disposing of Harris’s [sic] body.

     Smithwick drove the wagon with Smith and Prout, while Harris
     sat bleeding in the back seat. Smickwick [sic] followed Brown
     who was driving a gold Impala sedan. While in the back seat,
     Harris was asked by Smith and Prout if he attempted to have
     Brown killed, which he denied. Prout and Smith removed Harris'
     jewelry, watch, and $1,000 cash from him. The men drove to an
     agreed upon location down by the Schuylkill river. Brown told
     Smithwick, “put [Harris] to sleep.” Brown handed Smithwick a
     pair of black athletic gloves, and Smithwick shot Harris once in
     the forehead with a .357 handgun. Anthony Petty (identified on
     this record as Stutter-Ant) who had been in the car with Brown,
     began tying Harris' body with rope and bricks along with Prout.
     Smith[,] Prout, and Jacobs drug [sic] Harris through the snow to
     the river's edge, then dumped his body into the river. The men


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J-S28022-16


                                        th
     got into the cars and drove to 76 and Elmwood Streets in the
     City and County of Philadelphia. Once there [PettyL] Prout, and
     Smithwick met BrownL] Jacobs, Jawayne Brown/ Maurice Brown
     and Fat-Mark to eat and hang out.

     Jack Darrah, a CSX employee and eyewitness, saw two vehicles/
     a station wagon and a sedan, parked off Wharton and Schuylkill
     Avenue in the City and County of Philadelphia after midnight. He
     saw four (4) males dragging a body towards the river's edge.
     Police then received a radio call for “males dumping a body into
                                                                    th
     the river.” Police arrived at a salt factory located at 1500 37
     Street in the City and County of Philadelphia. Drag marks were
     discovered in the snow leading to the river's edge. A trail of
     fresh blood led down to the river’s edge. Numerous footprints
     were found surrounding the path of blood. As police approached
     the bank of the river they discovered a body floating upside
     down in the water. The police Marine Unit was summoned and
     retrieved Harris’s [sic] body from the water.          The police
     recovered one (1) .357 fired cartridge at the scene, as well as
     one Timberland boot, and multiple layers of crinkled duct tape
     formed into large circles approximately one (1) foot wide. A
     Motorola pager was also recovered but its owner could not be
     determined due to the excessive wear, scratch marks/and blood
     on its face. The next day all of Anthony Harris' jewelry and
     watch were sold by Smithwick and Smith on the street and they
     shared in the profit. Vincent Smithwick was arrested on March
     25, 2003. Christopher Smith was stopped by police on April
                    th
     13, 2003 at 6 and Spring Garden Streets, and a black semi-
     automatic handgun was confiscated from his possession.
     Richard Brown and Brian Prout were arrested on May 19,
     2003, at the Lincoln Greene Apartments. Two (2) handguns,
     a full magazine clip for a .45 handgun, and two (2) bulletproof
     vests were recovered from that location. Ballistics evidence
     collected at the location where Anthony Harris was killed, as
     well as recovered from Harris's [sic] body, matched the guns
     that were recovered from the apartment.

Trial Court Opinion, 7/19/07 at 1-6. (footnotes omitted).

     In April 2004, June 2004, and December 2004, the court sent Nino

Tinari, Esquire, notices indicating that he had been appointed to represent



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J-S28022-16



Brown and attached for trial in Brown’s case as his court-appointed attorney.

Four months prior to trial, Brown privately retained new counsel, Jack

McMahon, Esquire. Attorney McMahon, however, was unable to proceed to

trial on the trial date due to “issues that he c[ould not] control.” 3             As a

result, the court ordered Tinari to represent Brown at trial.4 In July 2005,

Brown5 was tried by a jury before the Honorable Renee Cardwell Hughes.

After    the   jury   returned    its   verdict,6   Brown   was   sentenced   to    life

imprisonment.7 Brown filed a timely direct appeal. Our Court affirmed his

judgment of sentence.         See Commonwealth v. Brown, 974 A.2d 1177

(Pa. Super. 2009) (unpublished memorandum).                   The Supreme Court

____________________________________________


3
  N.T. Pretrial Discussions, 6/28/05, at 9. In fact, his sister had just died
and he needed to take care of the out-of-town funeral arrangements.
4
    Voir dire began on June 30, 2005.
5
  Brown, Prout and Smith were tried jointly as co-defendants. Judge Hughes
retired from the bench on June 3, 2011.
6
  Brown was also convicted of robbery, kidnapping, criminal conspiracy and
carrying a firearm without a license. He was sentenced on those charges,
respectively, as follows:     10-20 years’ imprisonment; 10-20 years’
imprisonment; 10-20 years’ imprisonment; and 3½-7 years’ imprisonment.
The conspiracy sentence was ordered to run consecutively to his murder
sentence, and the remaining sentences ran concurrently with his murder
sentence.
7
  Brown was not represented by Attorney Tinari at sentencing. Rather,
Attorney McMahon represented him at the penalty phase where the jury did
not find aggravating circumstances to support imposition of the death
penalty.




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J-S28022-16



subsequently denied Brown’s petition for allowance of appeal on October 1,

2009. Commonwealth v. Brown, 980 A.2d 604 (Pa. 2009).

       On March 19, 2010, Brown timely filed the instant pro se PCRA

petition. The PCRA court appointed Teri B. Himebaugh, Esquire 8 who later

filed an amended petition.          On July 22, 2013, the Honorable M. Teresa

Sarmina held an evidentiary hearing on Brown’s PCRA petition, limited to the

following issues:      (1) whether trial counsel was ineffective for failing to

obtain exculpatory information disclosed by Commonwealth witness Vincent

Smithwick to federal authorities during proffer sessions, and (2) whether

trial counsel was ineffective for failing to meet with the petitioner prior to

trial. Trial counsel, the trial prosecutor, and Brown testified at the hearing.

       On July 29, 2013, Brown filed a motion for PCRA discovery, within

which he requested his prison visitation logs. However, before the motion

was ruled upon, counsel requested and the court granted PCRA counsel

leave to withdraw.       Newly-retained counsel, Paul George, Esquire, entered

his appearance and filed a motion to reopen the record to present Brown’s

prison visitation logs.        The court granted Brown’s motion and, at an

additional hearing on November 25, 2013, received the evidence from the

recovered logs.         On January 13, 2014, the PCRA court issued its

Pa.R.Crim.P. 907 notice of intent to dismiss Brown’s petition. In response,

____________________________________________


8
 On June 19, 2012, Himebaugh filed a motion for leave to amend Brown’s
PCRA petition, which she later filed on October 26, 2012.



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J-S28022-16



Brown requested permission to amend his PCRA petition to include two

additional claims of trial counsel’s ineffectiveness and, again, asked the court

to open the record. On March 7, 2014, the court heard oral argument on

whether counsel was ineffective for failing to call character witnesses. On

June 20, 2014, the PCRA court held an evidentiary hearing at which Brown

presented character witness testimony that he would have presented at trial

had he been given the opportunity.9 The Commonwealth presented rebuttal

testimony at that hearing as well. On October 2, 2014, in open court, the

PCRA court dismissed Brown’s petition, finding that he did not meet his

burden to prove the ineffectiveness claims.10 This timely appeal follows.

       On appeal, Brown presents the following issues for our review:
____________________________________________


9
   Although the court did not formally grant Brown leave to amend his
petition to include these additional ineffectiveness claims, Brown did file a
consolidated petition to reopen the record to amend his petition as well as
an amended petition raising these claims. Cf. Commonwealth v. Elliott,
80 A.3d 415 (Pa. 2013) (additional PCRA claims waived on appeal where
petitioner failed to raise new claims in original PCRA petition or counsel’s
amended petition; interjecting claims in supplemental brief not sufficient to
amend petition to include claims). Moreover, the fact that the court held a
Rule 908 evidentiary hearing specifically on those claims allows us to infer
that it implicitly granted Brown the right to raise the claims. Therefore, we
find them properly preserved. See Pa.R.Crim.P. 905.
10
   See Strickland v. Washington, 466 U.S. 668 (1984) (setting forth
three-prong test for ineffectiveness claims); see also Commonwealth v.
Spotz, 47 A.3d 63, 76 (Pa. 2012) (to prevail on ineffectiveness claim,
petitioner must plead and prove, by preponderance of evidence that (1)
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for action or inaction; and (3) petitioner suffered prejudice because of
counsel’s action or inaction).




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J-S28022-16


      (1)      Did the PCRA court erroneously deny [Brown’s] petition
               where court-appointed counsel never visited or consulted
               with [Brown] before or during his capital trial?

      (2)      Did trial counsel provide ineffective assistance where,
               because of his failure to consult with his capitally charged
               client, counsel failed to investigate and present character
               testimony and failed to investigate and object to the
               Commonwealth’s        inadmissible     negative     character
               witnesses?

      (3)      Should [Brown] be awarded a new trial based on after-
               discovered evidence, where key Commonwealth witness
               Hyneith Jacobs has admitted giving intentionally false
               testimony to deflect blame from himself?

      (4)      Did the PCRA court erroneously deny an evidentiary
               hearing regarding the proposed testimony of Edith Bond, a
               witness who observed a key portion of the incident and
               whose testimony exculpated Richard Brown?

      (5)      Did trial counsel provide ineffective assistance in litigating
               an oral, mid-trial, boilerplate motion to suppress physical
               evidence, and, to the extent that trial counsel preserved
               [Brown’s] suppression claim, was direct appeal counsel
               ineffective for failing to litigate this issue on appeal?

      (6)      Did trial counsel provide ineffective assistance where he
               failed to request a jury instruction regarding other crimes
               evidence and failed to object to the trial court’s failure to
               give such an instruction?

      (7)      Did trial counsel provide ineffective assistance where he
               failed to obtain critical discovery relating to the
               Commonwealth’s star witness Vincent Smithwick?

      Because we find this issue dispositive of the instant appeal, we first

address Brown’s claim that trial counsel was ineffective where he “never

visited or consulted with [him] before or during his capital trial.” Appellant’s

Brief at 36.




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      The seminal case on this issue was decided by our Supreme Court in

2003. In Commonwealth v. Brooks, supra, the defendant, who chose to

proceed pro se during his murder trial, raised a claim of stand-by counsel’s

ineffectiveness for failing to meet with him at any point prior to trial. In his

capital direct appeal, our Supreme Court reversed the defendant’s first-

degree murder conviction and verdict of death, stating:

      As this testimony makes clear, [counsel] never once met with
      [the defendant] in person before his trial on capital charges. In
      fact, [counsel] testified that he could only specifically recall one
      telephone conversation with [defendant], and that conversation
      lasted just twenty minutes to one-half hour. It should go
      without saying that 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. Although a lawyer can always learn
      certain information from his client over the telephone, we simply
      would be discounting the gravity of a death penalty case were
      we to say that a lawyer representing a defendant in such a case
      has done his job effectively when he has spent only limited time
      on the telephone with his client. Indeed, the very nature of a
      capital case, typically quite involved and always
      subjecting the defendant to the possibility of death,
      clearly necessitates at least one in-person meeting
      between a lawyer and his client before trial begins.
      Without such a meeting, there is little to no hope that the
      client will develop a fundamental base of communication
      with his attorney, such that the client will freely share
      important information and work comfortably with the
      lawyer in developing a defense plan. Moreover, only a
      face-to-face meeting allows an attorney to assess the
      client’s demeanor, credibility, and the overall impression
      he might have on a jury. This is of particular importance in
      cases in which the client may take the stand in his defense or at
      the penalty phase in an attempt to establish the existence of
      particular mitigating circumstances. As Appellant was deprived
      of the benefits of a face-to-face meeting here, it is clear that
      Appellant’s ineffectiveness claim has arguable merit.            See

                                     -9-
J-S28022-16


       [Commonwealth v.] Douglas, 737 A.2d [1188,] 1199 [Pa.
       1999].

Id. at 249 (emphasis added).11 Brooks essentially announced the minimum

action required by counsel to provide what is deemed constitutionally

effective representation in capital cases: counsel must conduct at least one

face-to-face meeting with his client.

       More recently, in Commonwealth v. Johnson, 51 A.3d 237 (Pa.

Super. 2012) (en banc), the defendant, who was also convicted of first-

degree murder and sentenced to life in prison, argued on collateral appeal

that trial counsel was ineffective where he failed to have a face-to-face

meeting with him until the eve of trial. The majority determined that where

counsel had a last minute meeting with Johnson on the eve of trial, a face-

____________________________________________


11
    In Commonwealth v. Britt, 83 A.3d 198 (Pa. Super. 2013), a three-
judge panel of this Court affirmed a defendant’s conviction for first-degree
murder and his sentence of life imprisonment. In that case, the defendant
contended on direct appeal that counsel was per se ineffective for failing to
“establish a relationship with him, interview him, keep him informed, take
prompt action to protect his rights, or investigate this matter.” Id. at 201.
The defendant, relying on Brooks, supra, argued that the trial court failed
to protect his rights when it neglected to conduct any inquiry into trial
counsel’s readiness for trial. Id. at 202. However, ultimately we found that
because Britt’s claims were non-record based and because he had not
waived PCRA review, he could not seek review of his ineffectiveness claims
on direct appeal but must have them deferred to PCRA review. Id. at 204,
citing Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Thus, we find
that any discussion regarding Brooks is dicta, and, therefore, neither
binding nor relevant to our resolution of the instant case. Moreover, we
distinguish the facts in Britt where counsel “had met with Appellant well
before trial,” id. at 205, from the instant case where there is no evidence
that Tinari ever met with Brown.




                                          - 10 -
J-S28022-16



to-face meeting with the defendant at his preliminary hearing, and a phone

consultation with his client, he was not per se ineffective. Essentially, the

Court found that counsel’s limited pretrial contact with his client was entirely

distinguishable from the attorney in Brooks who “failed to meet with his

client ‘at all.’” Id. at 243.12 While our Court acknowledged that additional

pre-trial attorney-client contact “may have been advisable,” it declined to

read Brooks in a way that would prevent it from analyzing the substantive

impact that counsel had on the defendant’s trial strategy. Id. at 243-44.

       Subsequently, our Supreme Court revisited the Brooks issue in

Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013).             In that case the

Supreme Court was faced with determining whether capital trial counsel was

ineffective for “completely fail[ing] to communicate with [the defendant] in

preparation for trial.” Id. at 425. The Court determined that Elliott would

not be entitled to relief under Brooks because the defendant neither sought

____________________________________________


12
   The concurrence in Johnson, authored by the Honorable David N. Wecht,
which was also joined by the Honorable Mary Jane Bowes, astutely points
out that not only must capital defense counsel meet face-to-face with his
client at least once before trial, but that that consultation must be truly
substantive.     Johnson, 51 A.3d at 250, 252 (Wecht, J., concurring)
(“Brooks[’] core premise is that at least one in-person meeting is necessary
effectively to represent a defendant facing a first-degree murder trial. The
meeting is not optional [and] cannot be an afterthought or a token visit
made only to comply with the bare minimum standard.”). Here, where we
have no evidence of even one face-to-face meeting between Brown and
Attorney Tinari prior to trial, an analysis of counsel’s contact is not dictated
by the holding of Brooks.




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J-S28022-16



permission to amend his later petition to include reference to Brooks and

the precise issue of counsel’s ineffectiveness, nor had Brooks been decided

prior to Elliott’s appeal. Id. at 431. However, in coming to its conclusion,

the Court noted that:

      It is clear that a majority of this Court in Brooks expressly
      required that counsel representing a defendant in a capital
      murder trial conduct a substantive, face-to-face consultation
      with the defendant prior to trial, and held that a failure to do so
      amounted to ineffectiveness of counsel warranting the grant of a
      new trial.

Id. The Court also made an important distinction between the analysis of

failure-to-consult ineffectiveness claims pre- and post-Brooks. Specifically,

prior to Brooks our courts had declined to evaluate such ineffectiveness

claims based solely upon the existence or duration of counsel’s pretrial face-

to-face consultation with the defendant. Id.

      Instantly, at the PCRA hearing, both Brown and Attorney Tinari

testified that Attorney Tinari was present for Brown’s preliminary hearing

and conducted pre-trial discovery on his behalf.    However, Attorney Tinari

had no specific recollection of ever having met with Brown face-to-face to

talk to him about the substance of his case or ever having spoken with him

over the phone prior to trial. N.T. PCRA Hearing, 7/22/13, at 21. Attorney

Tinari testified that he recalled having reviewed all pre-trial discovery at

some point and having visited the site of the shooting.      Id. at 17.     But,

counsel could not say whether his actions were for the preliminary hearing

or for the trial of Brown’s capital case.


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J-S28022-16



       Brown testified at the hearing that he never met face-to-face with

Attorney Tinari prior to trial.13         Id. at 56.   Brown acknowledged that

Attorney Tinari was present for his preliminary hearing, but he stated that

Attorney Tinari never spoke to him about the case before, during or after the

preliminary hearing and that immediately following the Commonwealth’s

witness testimony, “[Attorney Tinari] asked to be excused from the

Preliminary Hearing.” Id. at 57. The next time Brown saw Attorney Tinari

was at his trial. Id. Brown also testified that he tried to call Attorney Tinari

several times prior to trial while he was incarcerated, but he never was able

to speak with him. Id. at 57-58.14

       Significantly, on June 28, 2005,15 prior to trial, the trial judge had an

on-the-record conversation with Brown and the attorneys involved in the
____________________________________________


13
  Brown admitted several prisoner visitors’ logs dating from September
2004 to his trial in July 2005, none of which listed Tinari as a visitor and the
Commonwealth did not offer any testimony to the contrary.
14
   Brown also testified that had Attorney Tinari met with him prior to trial he
would have given Attorney Tinari the names of several eyewitnesses and
alibi and character witnesses names. Brown also would have asked Tinari to
challenge the information provided by the confidential informant involved in
the case, which led to the issuance of the search warrant for the apartment
where they uncovered physical evidence linking the crime to Brown. Id. at
59. While Brown may have raised these potential areas to investigate, they
also by no means replace an informed attorney’s analysis of possible
defenses and trial strategies.
15
  Brown has been unable to obtain notes from a June 27, 2005 conversation
between Attorney McMahon and Judge Hughes.           He alleges that the
conversation may never have been transcribed.




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J-S28022-16



case regarding Brown’s privately retained counsel, Attorney McMahon. The

court noted that Attorney McMahon had “very legitimate reasons” for not

being able to honor the scheduled trial date,16 and because of those reasons
____________________________________________


16
   Although not raised in the current appeal, in his amended PCRA petition
Brown argued that trial counsel was ineffective for failing to raise the claim
that he was denied his right to counsel of choice. See Amended PCRA
Petition, 10/26/12, at 51. Specifically, Brown averred that he paid Attorney
McMahon $10,000 in April 2005 to retain his services for trial. The record
contains a Pa.R.A.P. 1923 motion filed by Brown in which he recreates the
discourse between Attorney McMahon and Judge Hughes during counsel’s
request for a continuance due to the death of his sister and his responsibility
to arrange her out-of-town funeral. According to Brown, Judge Hughes
denied counsel’s continuance request, and informed counsel that if he
entered his appearance he would be starting trial on that date. Pa.R.A.P.
1923 Motion, 10/26/12, at 2. While the court never entered a formal order
denying Brown’s Rule 1923 motion, it implicitly did so by omitting the issue
from being included at his PCRA evidentiary hearing.
       As we have already recognized, an accused has the constitutional right
to counsel. See supra note 2. The right to choose his or her own counsel,
however, must be weighed against, and may reasonably be restricted by,
the state’s interest in the swift and efficient administration of criminal
justice. Commonwealth v. Randolph, 873 A.2d 1277, 1282 (Pa. 2005).
Here, Brown privately retained Attorney McMahon to represent him at his
capital trial. Brown did nothing to intentionally delay the start of trial. Cf.
Commonwealth v. Travillion, 17 A.3d 1247 (Pa. 2011); Commonwealth
v. Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009); Commonwealth v. Kelly, 5
A.3d 370 (Pa. Super. 2010). Under the particular circumstances where
retained counsel’s sister had passed away and Brown had been developing a
defense strategy with counsel in his capital case for months, we believe that
the court abused its discretion in denying Attorney McMahon’s first and only
record request for a continuance to give him additional time to prepare for
trial. This is especially so where the court failed to conduct any balancing
test to determine whether “the swift administration of justice would be
vitiated by granting [counsel’s] continuance,” Commonwealth v. Prysock,
972 A.2d 539, 544 (Pa. Super. 2009), or even inquire as to when counsel
would be able to proceed to trial, and consider severing his case from that of
his co-defendants. See Commonwealth v. McAleer, 748 A.2d 670, 674
(Pa. 2000) (“a myopic insistence upon expeditiousness in the face of a
(Footnote Continued Next Page)


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J-S28022-16



he had never entered his appearance in the case. N.T. Pretrial Discussions,

6/28/05, at 5-6.        During the discussion, Brown told the trial judge that

Attorney Tinari had never come to see him the entire time prior to trial and

that Attorney Tinari did not know his case.         Id. at 8-9, 10.   Despite his

legitimate concerns involving a life-or-death matter, the court informed

Brown that “he had created this problem for himself” by having talked to

Attorney McMahon months prior which “create[d] in Mr. Tinari’s mind a

situation to believe that you and Mr. McMahon might work this out, but you

didn’t.” Id. at 9-10.17 After assuring Brown that Attorney Tinari “kn[ew] his

case” and was “one of the most successful attorneys in the Commonwealth,”

the trial judge told Brown “we’re going to trial.” Id. This is not a case of

whether Attorney Tinari was competent to try this matter. But rather, where

Brown had retained his own counsel and developed a rapport with same,

forcing appointed counsel who had not met with Brown even once before

                       _______________________
(Footnote Continued)

justifiable request for delay can render the right to defend with counsel an
empty formality.”) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964));
see also Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (where
defendant faced first-degree murder charges for which Commonwealth
sought death penalty, court manifestly abused its discretion in denying
multiple motions for continuance in weeks prior to start of trial; trial court
should pay careful attention to nature of crimes at issue and level of
intricacy of evidence to be presented by parties when ruling on continuance
motion).
17
   We find the trial court’s reasoning faulty where there is no way that
Attorney McMahon or Brown could have predicted that counsel’s sister would
pass away on the eve of trial, necessitating a continuance.



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trial was an abuse of discretion and forced appointed counsel to be

ineffective by court fiat.

      As the court pointed out at the PCRA hearing, at the close of the

Commonwealth’s case the trial judge asked Brown whether he was going to

present evidence in the matter, to which Brown replied that he would not

testify. N.T. Trial (Jury), 7/19/05, at 67-68. Brown stated that while he had

consulted with counsel regarding whether he should take the stand, it was

his decision not to testify. Id. at 68 (“Is it your decision and yours alone

after seeking [counsel’s] advice?”    “My decision.”).    Moreover, when the

court asked Brown if he was satisfied with Attorney Tinari’s representation,

Brown responded, “I[’ll] tell you after closing arguments.”     Id. at 69.   In

response, the trial judge told Brown that he had to tell her now.        Brown

responded, “Yes.” Id.

      While it could be argued that Brown’s admission of adequate

representation near the end of trial waives his claim on appeal, we do not

find that Brown’s answer defeats his ineffectiveness claim.          As Brown

acknowledged at the PCRA hearing, he felt as though when he was asked

the question, the trial judge was “kind of putting him in a situation also, so –

yes, I just answered. I just said yes.” N.T. PCRA Hearing, 7/22/13, at 85.

Moreover, Brown’s impression that he felt coerced to answer “yes” to the

question is further supported by the court’s actions at the June 28, 2005

pretrial proceeding where the court gave him no option but to proceed with




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Attorney Tinari as his trial counsel without fully considering his claim that he

had never met with counsel prior to trial.

      Finally, despite the trial judge’s opinion that Attorney Tinari was “one

of the most successful attorneys in the Commonwealth,” N.T. Pretrial

Discussions, 6/28/05, at 9, in Brooks our Supreme Court held that “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.” Brooks, supra at 249. Here, Brown and

Attorney   Tinari   did   not   even   have     the   limited   thirty-minute   phone

conversation which was afforded the defendant in Brooks. In fact, to the

contrary, the record contains no evidence that they had any consultation or

conversation about the case prior to the start of trial or had ever met before

in an unrelated case or matter other than during the preliminary hearing in

the instant case. Cf. Elliott, supra (distinguishing facts of Brooks where

defendant had met with counsel in four, unrelated criminal cases and was

familiar with and had working relationship with him).

      Under such circumstances, it is clear that Brown’s ineffectiveness claim

has arguable merit.         Brooks, supra at 249.               Counsel offered no

explanation, let alone a reasonable one, as to why he failed to meet with




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Brown prior to trial or return any of his phone calls.18 Id. at 250. Moreover,

even if Attorney Tinari competently represented Brown at trial, one’s

constitutional right to the assistance of counsel also includes meeting with a

defendant prior to trial because “in order to prepare a defense to a charge of

murder in the first degree, it is essential that at the very least, counsel meet

with his client in person to, inter alia, gather information from the client,

evaluate    the    client’s   demeanor,        and   try   to   establish   a   working

relationship.”19    Id.   Under such circumstances, Brown was prejudiced by

counsel’s failure to meet with him in person prior to trial. Id.

       Finally, the trial court and the Commonwealth assert that because

Brown suffered no prejudice due to the overwhelming evidence of guilt

presented at trial, he is not entitled to relief under the Strickland
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18
   The obvious inference from the record is that once Attorney McMahon was
retained, counsel did not believe that he had any further responsibility.
However, there is no valid reason why Attorney Tinari had not met with his
client even once in the eleven months before Brown hired Attorney
McMahon.
19
   The Commonwealth claims that because Brown did not receive the death
penalty, like the defendant in Brooks, he was not prejudiced. Appellee’s
Brief, at 18. However, Brooks does not limit its holding to whether a first-
degree murder defendant ultimately receives a sentence of life imprisonment
or the death penalty. Rather, the Court states that “the very nature of a
capital case, typically quite involved and always subjecting the defendant to
the possibility of death, clearly necessitates at least one in-person meeting
between a lawyer and a client before trial begins.” Brooks, supra at 249;
Id. at 250 (“In order to prepare a defense to a charge of murder in the first
degree, it is essential that at the very least, counsel meet with his client in
person[.]”).




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ineffectiveness     test.    However, we remind the trial court and the

Commonwealth that while Brooks did cite to the three-pronged Strickland

ineffectiveness test, the Court concluded that “an attorney who does not

meet in person with his client at all prior to a capital trial simply cannot be

deemed sufficiently prepared to defend his client’s life.” Brooks, supra at

250 n.7 (emphasis added).           With this precept in mind, the Brooks Court

presumed that the defendant was prejudiced because “a defense to the

charge of murder in the first degree” was not able to be prepared where

counsel had never met with his client prior to trial. Id. at 250. See Elliott,

supra at 431 (“Brooks expressly required that counsel representing a

defendant in a capital murder trial conduct a substantive, face-to-face

consultation with the defendant prior to trial, and held that a failure to do so

amounted to ineffectiveness of counsel warranting the grant of a new

trial.”).20   Indeed, the failure to meet with Brown and not to be aware of

potential character and fact witnesses belies the Commonwealth’s and trial

court’s position.

       Instantly, we cannot affirm the trial court’s decision to proceed with a

capital murder trial when counsel, albeit reputable and competent, never

had any in-person consultation with his client to determine an adequate

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20
   See Elliott, supra at 451 (Castille, J., concurring) (“[T]he Brooks
majority had established a bright-line rule that failure to meet with a client
face-to-face established ineffectiveness per se.”).




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defense, learn of any potential witnesses or develop any trial strategy.

Accordingly, we find that Brown was denied effective assistance of counsel,21

Brooks, supra, and reverse the order denying Brown PCRA relief and

remand for a new trial. Johnston, supra.

       Order reversed.         Case remanded for a new trial.      Jurisdiction

relinquished.22

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




____________________________________________


21
   The Commonwealth contends in its brief that Brown “admitted he had not
been willing to cooperate with appointed counsel” when he failed to tell
Attorney Tinari about a potential alibi on the eve of trial or did not discuss
witnesses with him on the first day of trial.        Appellee’s Brief, at 15.
However, we remind the Commonwealth that Brown is entitled to
constitutionally-based effective representation and that the duty to consult is
placed on counsel, not his client.
22
  Having reversed the PCRA court and remanded for a new trial, we need
not reach the remaining issues raised on appeal.



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