Com. v. Brightwell, A. ( 2016 )

J-S46001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JAMES BRIGHTWELL, JR.,
Appellant No. 2679 EDA 2015
Appeal from the PCRA Order Entered July 28, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000939-2013
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 26, 2016
Appellant, Anthony James Brightwell, Jr., appeals pro se from the post
conviction court’s July 28, 2015 order denying his first petition filed under
the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court set forth the facts of Appellant’s case, as follows:
On January 25, 2013, in the early evening hours, [Appellant]
along with his four codefendants, Sergio Droz, Calvin Thompson,
Tyrone Palmer and Nafis Janey[,] traveled from the City of
Chester, in Delaware County, Pennsylvania, to the Borough of
West Chester, in Chester County, Pennsylvania, for the purpose
of locating a drug dealer to rob. The five men had discussed this
plan to rob a drug dealer amongst themselves before arriving in
West Chester and had agreed to commit the robbery together.
Mr. Janey supplied the transportation to and from West Chester
in the form of a white Nissan Maxima. Mr. Palmer supplied the
firepower in the form of two handguns, a Taurus .45 caliber
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*
Retired Senior Judge assigned to the Superior Court.
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semi-automatic pistol and a Kel[-T]ec 9 mm. semi[-]automatic
pistol, used to facilitate the commission of the robbery.
After arriving in West Chester, the five men proceeded to the
Apartments for Modern Living (aka the "Sidetrack Apartments"),
located at 201 South Matlack Street, West Chester,
Pennsylvania. During a cell phone conversation earlier in the
evening, Mr. Droz agreed to meet Jamal Ahmed Scott at the
Sidetrack Apartments under the pretense that he wanted to
purchase some marijuana from him. Before meeting Mr. Scott,
the five men agreed that [Appellant] and Mr. Droz would rob Mr.
Scott. Mr. Janey drove [Appellant] and Mr. Droz to the Sidetrack
Apartments where he dropped them off, then, along with Mr.
Palmer and Mr. Thompson, waited for them to commit the
robbery and call for a ride. That evening, at approximately 10:49
p.m., [Appellant] met up with Mr. Scott and entered the front
passenger door of the silver Honda Civic that Mr. Scott had
driven to the location. Mr. Scott's vehicle then made a left turn
onto East Union Street and after traveling a short distance[,]
pulled over and stopped. While in Mr. Scott's vehicle, [Appellant]
pulled the .45 caliber pistol that Mr. Palmer had supplied, on Mr.
Scott. As a result of [Appellant’s] displaying the firearm in the
Honda, a struggle ensued between Mr. Scott and [Appellant].
During the struggle, [Appellant] discharged one round into the
ceiling of the Honda. While this was happening, Mr. Droz was
waiting outside the Honda, armed with the 9 mm. pistol Mr.
Palmer had supplied him. When Mr. Droz observed the struggle
between [Appellant] and Mr. Scott and heard the shot fired
within the vehicle, he walked up to the driver's door area of the
Honda and at close range shot Mr. Scott in the heart, fatally
wounding him. Immediately prior to the shooting, [Appellant]
removed a backpack from Mr. Scott's Honda containing
marijuana. [Appellant] and Mr. Droz fled the scene and were
eventually picked up by Mr. Janey, Mr. Palmer and Mr.
Thompson, whereupon the five men returned to Mr. Palmer's
residence in the City of Chester to divide the marijuana amongst
the five of them.
PCRA Court Opinion (PCO), 10/20/15, at 2-3 (citations to the record
omitted).
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The PCRA court also provided a summary of the procedural history of
Appellant’s case:
On March 31, 2014, [Appellant] entered into a negotiated guilty
plea agreement on criminal information number 0939-2013 in
which he pled guilty to one count of third-degree Murder,2 one
count of Robbery (Inflict Serious Bodily Injury),3 and one count
of Criminal Conspiracy to Commit Robbery.4
2
In violation of 18 Pa.C.S.A. § 2502(c).
3
In violation of 18 Pa.C.S.A. § 3701(A)(1)(i).
4
In violation of 18 Pa.C.S.A. § 903[;]18 Pa.C.S.A. §
3701(A)(1)(i).
On that same day, the trial [c]ourt imposed the following
negotiated sentence: on the one count of third-degree Murder,
[Appellant] received a sentence of twenty (20) to forty (40)
years of total confinement in a state correctional institution; on
the one count of Robbery (Threaten to Inflict Serious Bodily
Injury), [Appellant] was sentenced to seven (7) to fourteen (14)
years of total confinement in a state correctional institution
consecutive to the third-degree murder sentence; and on the
one count [of] Criminal Conspiracy to Commit Robbery,
[Appellant] was sentenced to three (3) to six (6) years of total
confinement in a state correctional institution consecutive to the
robbery sentence. Therefore, the aggregate term of total
confinement in a state correctional institution is not less than
thirty (30) years and not more than sixty (60) years.
Matthew Vassil, Esquire, represented [Appellant] during the
negotiated plea agreement and sentencing hearing. [Appellant]
did not seek a direct appeal to the Superior Court. However, on
March 2, 2015, [Appellant] filed a timely pro se … []PCRA[]
[p]etition. As this was the indigent [Appellant’s] first PCRA
Petition, the [c]ourt appointed Robert P. Brendza, Esquire, to
represent him in all matters pertaining to the Petition. On April
7, 2015, Mr. Brendza petitioned the [c]ourt for leave to withdraw
as PCRA counsel, filing a “no-merit” letter pursuant to the
procedures outlined in Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988). On April 15, 2015, after an independent
review of [Appellant’s] PCRA petition, counsel’s motion to
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withdraw and all matters of record, the [c]ourt issued its Notice
of Intent to Dismiss PCRA Petition (“907 Notice”).
In the 907 Notice, it was explained to [Appellant] that his PCRA
petition lacked arguable merit. It was further explained to
[Appellant] that because his petition was devoid of merit, he was
not entitled to relief under the PCRA and that he had twenty (20)
days from the date of docketing of the 907 Notice to file a
response. On June 29, 2015, [Appellant] filed his “Response to
Notice of Intent to Dismiss PCRA” (“Response”). After reviewing
the Response, the [c]ourt determined that it also lacked
arguable merit and did not advance [Appellant’s] PCRA claims.
Consequently, we dismissed [Appellant’s] PCRA petition on July
28, 2015.
PCO at 1-2 (citations to the record omitted).
Appellant filed a timely, pro se notice of appeal.1 Appellant also timely
complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise
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1
We note that Appellant had until Thursday, August 27, 2015, to file a
timely notice of appeal. His notice was not time-stamped by the Clerk of
Courts of Chester County until Tuesday, September 1, 2015. Appellant’s
notice, however, was hand-dated August 24, 2015, and the docket also
indicates a “Document Date” of August 24, 2015. While Appellant’s notice of
appeal has attached to it a certified mail receipt from the United States
Postal Service, that receipt is undated, and the Clerk of Courts did not
include, in the certified record, the envelope in which Appellant’s notice
arrived. Given these circumstances, and because neither the trial court nor
the Commonwealth mentions the timeliness of Appellant’s appeal, we will
consider his notice of appeal as being timely filed under the prisoner mailbox
rule. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super.
2011) (“[I]n the interest of fairness, the prisoner mailbox rule provides that
a pro se prisoner’s document be deemed filed on the date he delivers it to
prison authorities for mailing.”); see also Commonwealth v. Cooper, 710
A.2d 76, 79 (Pa. Super. 1998) (“Where … the opposing party does not
challenge the timeliness of the appeal and the prisoner’s assertion of
timeliness is plausible, we may find the appeal timely without remand.”)
(citation omitted).
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statement of errors complained of on appeal.2 The PCRA court filed a Rule
1925(a) opinion on October 20, 2015. Herein, Appellant presents one issue
in his “Statement of the Questions Involved[,]” yet appears in the argument
portion of his brief to be raising four claims for our review. We paraphrase
(and reorder) those issues, as follows:
I. Whether PCRA counsel was ineffective for seeking to withdraw
from representing Appellant where counsel failed to adequately
address whether Appellant’s guilty plea was knowing and
intelligent?
II. Whether PCRA counsel was ineffective for failing to
adequately address in his Turner/Finley no-merit letter, or file
an amended petition on Appellant’s behalf, raising the claim that
the Commonwealth violated Appellant’s negotiated plea
agreement, resulting in Appellant’s receiving a lengthier
sentence than that which he agreed upon?
III. Whether PCRA counsel was ineffective for not alleging trial
counsel’s ineffectiveness for failing to file a motion to suppress
statements that he made to police?
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2
Another question of timeliness arises with regard to Appellant’s Rule
1925(b) statement. Specifically, that statement was due Wednesday,
September 23, 2015, yet it was not docketed until Monday, September 28,
2015. We cannot ascertain from the certified record the date on which
Appellant submitted his Rule 1925(b) statement to prison authorities
because, for some reason, his concise statement is not included in the
record. Notably, the docket entry for his Rule 1925(b) statement contains a
“Document Date” of September 20, 2015, which aligns with the date written
on the Rule 1925(b) statement Appellant attaches to his brief to this Court.
We also note that the PCRA court deemed Appellant’s Rule 1925(b)
statement as being timely filed. See PCO at 1 (“[T]his Opinion is filed
pursuant to Pa.R.A.P. 1925 in response to [Appellant’s] … timely Statement
of Errors Complained of on Appeal….”) (emphasis added). Because
Appellant’s concise statement was erroneously excluded from the certified
record, we will accept the PCRA court’s conclusion that it was timely filed
under the prisoner mailbox rule. See Chambers, 35 A.3d at 38.
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IV. Whether the PCRA court erred by not appointing Appellant
different PCRA counsel, when Attorney Brendza had previously
represented Appellant’s co-defendant, resulting in a conflict of
interest in counsel’s representation of Appellant?
See Appellant’s Brief at 6, 8-9, 12-13, 15.
Our standard of review regarding an order denying post-conviction
relief under the PCRA is whether the determination of the court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference
to the findings of the PCRA court, and we will not disturb those findings
merely because the record could support a contrary holding.
Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).
Here, in Appellant’s first three claims, he asserts ineffective assistance
of PCRA counsel.3 Briefly,
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-90 (Pa. Super. 2012)
(citations omitted).
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3
Appellant presented these claims in his timely-filed, pro se response to the
PCRA court’s Rule 907 notice of its intent to dismiss; thus, they are
preserved for our review. See Commonwealth v. Ford, 44 A.3d 1190,
1200 (Pa. Super. 2012) (“[I]ssues of PCRA counsel effectiveness must be
raised in a serial PCRA petition or in response to a notice of dismissal before
the PCRA court.”).
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Appellant first contends that Attorney Brendza failed to properly
address, in his Turner/Finley no-merit letter, whether Appellant’s guilty
plea was knowing, intelligent, and voluntary. Specifically, Appellant takes
issue with the fact that at the plea proceeding, the Commonwealth “state[d]
on the record that there are some changes … to the plea colloquy[,]” and
plea counsel then went over the changes with Appellant, during what the
record indicates was a “[b]rief pause” in the proceeding.4 See N.T. Plea,
3/31/14, at 2-3. According to Appellant, Attorney Brendza ineffectively
failed “to speak to [him] about the brief pause that took place….”
Appellant’s Brief at 7. Appellant seemingly suggests that this ‘brief pause’
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4
The PCRA court describes the changes made to Appellant’s written colloquy
as follows:
The changes made … included correcting the statutory maximum
[sentence] for third-degree Murder and associated fine,
modifying the Robbery subsection to correctly reflect that
[Appellant] was pleading guilty to 18 Pa.C.S.A. § 3701(A)(1)(i)
(inflicting serious bodily injury) instead of the Robbery,
subsection 3701(A)(1)(ii) variant, and [amending] the
corresponding Conspiracy charge.18 The modifications did not
change the grading of the offenses and they comported with the
criminal Information originally filed. Moreover, none of the
changes affected the length of incarceration contemplated in the
negotiated sentence.
18
Additionally[,] the following conditions were added:
[Appellant] was required to pay $250 to have his DNA
registered as a result of his felony convictions, the [c]ourt
would impose restitution joint and several with two co-
defendants, and [Appellant] would receive credit for time
served from February 5, 2013 to March 31, 2014.
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was inadequate to demonstrate that he knowingly, voluntarily, and
understandingly initialed the changes made to the plea colloquy and,
therefore, Attorney Brendza should have challenged the validity of the guilty
plea, and/or the effectiveness of plea counsel, in an amended petition.
Appellant’s arguments are meritless. First, in his pro se petition,
Appellant did not assert, or even allude, that his plea was involuntary and/or
unknowing because changes were made to the written colloquy and only a
‘brief pause’ was taken for Appellant to go over those amendments with plea
counsel. Moreover, the record of the plea proceeding demonstrates that
plea counsel discussed the changes in the plea colloquy with Appellant
before the plea hearing, and that the ‘brief pause’ in the proceedings was
only for Appellant to initial the additions to the written colloquy. See N.T.
Plea at 3. Additionally, as the PCRA court stresses,
[t]he notes of testimony from the guilty plea hearing
demonstrate that the court inquired at length concerning the
terms of the written plea agreement between [Appellant] and
the Commonwealth. Specifically, during the plea hearing,
[Appellant] acknowledged that, by entering his pleas, he was
admitting to having committed each of the specified crimes.
[Appellant] also stated during the plea colloquy that he had been
afforded sufficient time and opportunity to consult with counsel,
and that he was satisfied with the legal representation that he
had received. (N.T., 3/31/14, at 8). [Appellant] further advised
the [c]ourt that he understood what he was doing and that he
was entering the pleas voluntarily and of his own free will.
(Written Colloquy, 3/31/14, 5-10; N.T., 3/31/14, at 2-11).
The record in this matter also indicates that [Appellant]
acknowledged and accepted the changes made to his proposed
sentence. (N.T., 3/31/14, at 11-16). Specifically, the record
evidences that [Appellant] understood, acknowledged, and
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voluntarily initialed the changes made to the written guilty plea
colloquy.
…
[Appellant] was present in open-court for all of the changes and
initialed them on the written colloquy. As an additional
safeguard, the [c]ourt paused the proceedings to ensure that
[Appellant] understood and agreed to the modifications. ([N.T.,
3/31/14,] at 2-3). Furthermore, [Appellant] answered all
questions posed to him in open-court clearly[,] and stated that
he had no questions about what he was doing. The [c]ourt even
informed [Appellant, after the changes were discussed,] that he
had the right to reject the negotiated agreement and proceed to
trial on all of the charges brought against him. (Id. at 16).
[Appellant] acknowledged that he had the right to a jury trial
and understood that, by pleading guilty, he was relinquishing
this and almost all of the appeal rights he otherwise would have.
(Written Colloquy, 3/31/14, at 6-8; N.T., 3/31/14, at 10).
PCO at 5-6.
Based on this record, we ascertain no error in the PCRA court’s
conclusion that Appellant “had all of the information necessary to make an
intelligent and informed decision on how to plead[,]” and that his decision to
do so was knowing, intelligent, and voluntary. Id. at 6. Accordingly,
Appellant has not demonstrated that Attorney Brendza acted ineffectively by
not challenging the validity of Appellant’s plea in any regard, let alone on the
basis that there was only a ‘brief pause’ when Appellant initialed minor
changes made to the written plea colloquy. Therefore, Appellant’s first issue
is meritless.
Next, Appellant argues that Attorney Brendza acted ineffectively
because he,
failed to adequately address, or file an [a]mended PCRA petition,
and request an evidentiary hearing when [A]ppellant … did not
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receive the negotiated plea deal that was presented to him for
his participating in assisting the Commonwealth in prosecuting
the other defendant’s [sic] in this case. Specifically, Attorney
Brendza did not address the issue in his no[-]merit letter. The
record in this case demonstrates at the plea/sentencing hearing,
the Commonwealth backed out of it’s [sic] plea agreement of 25
to 50 years for [Appellant’s] plea of guilt.
Appellant’s Brief at 9.
Preliminarily, Attorney Brendza did address, in the Turner/Finley no-
merit letter, Appellant’s claim that his plea was invalid because he did not
receive the agreed-upon sentence. See No-Merit Letter, 4/7/15, at 4-7.
Moreover, Attorney Brendza could not have filed an amended petition raising
this waived attack on the validity of Appellant’s plea, where such claim could
have been raised on direct appeal.5 See 42 Pa.C.S. § 9543(a)(3) (stating
that to be eligible for relief, the petitioner must plead and prove that “the
allegation of error has not been previously litigated or waived”); 42 Pa.C.S.
§ 9544(b) (stating “an issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in
a prior state post[-]conviction proceeding”).
In any event, the record does not support Appellant’s claim that the
Commonwealth violated the plea bargain by recommending a lengthier
sentence. As Attorney Brendza emphasized in the no-merit letter, Appellant
“acknowledged and accepted that [his] original plea offer of 25-50 years was
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5
Appellant does not argue that plea/appellate counsel was ineffective for
failing to file a direct appeal presenting this issue.
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revoked and changed to 30-60 years because of [Appellant’s] failure to fully
co-operate in testifying at the Tyrone Palmer trial.” No-Merit Letter at 4
(citing N.T. Plea at 11-16). The record demonstrates that Appellant
voluntarily, knowingly, and understandingly pled guilty knowing the
sentence he faced. Accordingly, Appellant has failed to prove that Attorney
Brendza acted ineffectively by not presenting this waived and/or meritless
claim in an amended PCRA petition.
Next, Appellant presents a layered claim of ineffectiveness, contending
that Attorney Brendza was ineffective for not asserting that plea counsel was
ineffective for failing to file a motion to suppress statements Appellant made
to police. According to Appellant, during questioning by police, he informed
them that “his family [would] hire him an attorney,” yet “[t]he police
ignored [A]ppellant[,] … continued to question him[,] and [A]ppellant gave
the police statements.” Appellant’s Brief at 15. Appellant claims that “[t]he
police took the statements in the absence of counsel, and therefore the
statements should be presumed involuntary and are inadmissible in any
court proceedings.” Id. (citations omitted). He also maintains that he
informed Attorney Brendza that “he suffered from attention deficit disorder,
and had other learning disabilities[,] that would render his statements to the
police, and the guilty plea[,] involuntary.” Id. at 16. Finally, Appellant
avers that he,
specifically brought this issue to the attention of PCRA counsel,
arguing his statements should have been suppressed, thereby
preventing the government from using them. Had PCRA counsel
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raise[d] this ineffective assistance of [plea] counsel for failing to
move to suppress his statements, [A]ppellant could have
proceeded to trial, and avoided the guilty plea process entirely.
He would have been able to testify to what exactly happened in
this incident, proved it was self[-]defense, and not what he told
the police after he requested an attorney would be hired by his
family. The [c]ourt and PCRA counsel simply held this issue is
waived.
Appellant’s Brief at 16.
Initially,
[w]here the defendant asserts a layered ineffectiveness claim he
must properly argue each prong of the three-prong
ineffectiveness test for each separate attorney.
Layered claims of ineffectiveness are not wholly distinct
from the underlying claims[,] because proof of the underlying
claim is an essential element of the derivative ineffectiveness
claim[.] In determining a layered claim of ineffectiveness, the
critical inquiry is whether the first attorney that the defendant
asserts was ineffective did, in fact, render ineffective assistance
of counsel. If that attorney was effective, then subsequent
counsel cannot be deemed ineffective for failing to raise the
underlying issue.
Rykard, 55 A.3d at 1190 (internal citations and quotation marks omitted).
Appellant’s underdeveloped argument does not explain how each
prong of the ineffectiveness test is satisfied, for both his plea counsel and his
PCRA counsel, regarding his suppression claim. Additionally, he offers a
completely inadequate discussion of the underlying suppression issue(s),
except to say that he gave statements to police that should have been
suppressed because he was denied his right to counsel, and because he had
learning disabilities that made his statements involuntary. Notably, there
are no statements by Appellant to police in the certified record, and nothing
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in the record demonstrates, or even suggests, that Appellant gave any
statement(s) to police. For instance, the Commonwealth did not mention
that Appellant made any admissions or inculpatory statements to police
when reciting the facts of the case at the guilty plea proceeding. See N.T.
Plea at 4-6. Moreover, Appellant himself does not even offer any details
about the alleged statements, such as when he provided them, the context
in which they were given, or the content of what he said that inculpated him
in the robbery and murder of Jamal Scott. Finally, Appellant does not
discuss how his learning disabilities impacted the voluntariness of his
statements and/or guilty plea. For all of these reasons, Appellant’s
argument is inadequate to prove that plea counsel was ineffective for failing
to file a motion to suppress, and that Attorney Brendza was ineffective for
not raising this issue in an amended petition.
In Appellant’s last issue, he argues that the trial court erred by not
appointing him new PCRA counsel when Attorney Brendza had a conflict of
interest based on his representation of one of Appellant’s co-defendants,
Calvin Thompson. Appellant claims that “[t]he conflict of interest that exists
in the PCRA proceedings require[s] the attention of this Court, in particular
due to [A]ppellant’s co-defendant[’s] receiving a lighter sentence than
[A]ppellant did, when [A]ppellant even cooperated with the prosecution in
this case.” Appellant’s Brief at 14. Appellant devotes the majority of his
argument to stressing that, in Attorney Brendza’s initial no-merit letter, he
denied that he had represented Thompson, yet counsel subsequently filed a
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“Supplemental Finley Letter” stating that he “did indeed represent Mr.
Thompson in 2014 as conflict PCRA counsel for his involvement in this same
case.” Supplemental Finley Letter, 4/15/15, at 1. Appellant contends that
Attorney Brendza’s initial denial of representing Thompson “sheds light on
[Attorney Brendza’s] inability to represent [A]ppellant fairly and impartially,
and without a conflict of interest.” Appellant’s Brief at 13.
The record does not support Appellant’s argument. While Attorney
Brendza did initially state, in his no-merit letter, that he did not represent
Thompson, he filed his Supplemental Finley Letter just eight days later and
candidly admitted his error. Attorney Brendza then explained why his
representation of Thompson did not cause a conflict of interest in his
representation of Appellant, stating:
It is not an automatic conflict of interest for an attorney to
represent multiple co-defendants in the same criminal case.
What factors define a conflict of interest can be found in the
Rules of Professional Conduct at number 1.7. This rule explains
that a conflict of interest will exist if the representation of one
client will be directly adverse to another client or if there is a
significant risk that representation of one or more clients will be
materially limited by []the lawyer’s responsibilities to another
client.
As a PCRA counsel, I am not involved in how cases are resolved.
I take no part in developing or executing trial tactics if the case
is resolved by trial or in recommendations or arguments aimed
at achieving an acceptable sentence if the case is resolved by a
plea.
As PCRA counsel[,] I can only work with the facts that are
already established. Therefore, if co-defendants in the same
case resolve their case and then file … PCRA petitions, I can
represent them both, without conflict, as long as the claims of
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one co-defendant are not adverse or [in] conflict with the claims
of the other.
In your particular case, you and Mr. Thompson do not raise
PCRA issues that are in conflict with those raised by the other.
In other words, my representing either of you is not adverse to
the other’s position and my representation of one of you does
not materially limit my representation of the other. Therefore,
by rule, no conflict of interest exists.
Supplemental Finley Letter at 1-2.
Attorney Brendza is correct that representation of co-defendants,
alone, does not constitute a conflict of interest. See Commonwealth v.
Breaker, 318 A.2d 354, 356 (Pa. 1974) (“[D]ual representation alone does
[n]ot amount to a conflict of interest.”) (citations omitted). Additionally, it
is the defendant’s burden to “demonstrate that a conflict of interest actually
existed…,” and that “the possibility of harm” was present. Id. (citations
omitted). An “appellant will satisfy the requirement of demonstrating
possible harm, if he can show, inter alia, ‘that he had a defense inconsistent
with that advanced by the other client, or that counsel neglected his case in
order to give the other client a more spirited defense.’” Id. (citation
omitted).
Here, it is important to stress that Attorney Brendza represented
Thompson in collateral proceedings that occurred in 2014, prior to his
representation of Appellant which began in March of 2015. Appellant does
not explain how Attorney Brendza’s subsequent representation of him, in
these collateral proceedings, conflicted with counsel’s prior representation of
Thompson, also in collateral matters. Instead, Appellant only mentions the
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fact that Thompson received a ‘lighter sentence’ than Appellant. However,
we fail to see how this fact, in and of itself, would raise any concern that
Thompson and Appellant would have conflicting strategies or issues on
collateral review. Thus, Appellant has not demonstrated any possible
conflict by Attorney Brendza in representing both men, especially when that
representation was not concurrent. Thus, the record supports Attorney
Brendza’s conclusion that he did not have a conflict of interest in
representing Appellant. Consequently, the PCRA court did not err in refusing
to appoint new PCRA counsel for Appellant. Appellant’s fourth and final
claim is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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