Com. v. Brunson, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON BRUNSON :
:
Appellant : No. 1826 EDA 2021
Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004492-2015
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 22, 2023
Aaron Brunson (Brunson) appeals from the August 19, 2021 order of
the Court of Common Pleas of Philadelphia County (PCRA court) dismissing
his petition filed pursuant to the Post-Conviction Relief Act.1 We affirm.
I.
The PCRA court summarized the facts of this case as follows:
The Commonwealth of Pennsylvania soundly established beyond
a reasonable doubt that in the early morning hours of February
27, 2015, the jointly tried defendants, [] Brunson, Haneef Tuck,
along with two other males, forcibly invaded a tattoo parlor
located at 1932 N. 31st Street and robbed business owner Kasheef
Murray and his friend Isaiah Brown. On the night of February 26,
2015 and into the early morning of February 27, 2015, victims
Murray and Brown were gambling together at the SugarHouse
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq.
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Casino in Philadelphia. Each won several hundred dollars. []
Brunson and [] Tuck were also at the casino, along with Sharique
Orr and Ernest Myers, and had observed the victims win money.
The complainant Isaiah Brown had been friendly with [Brunson]
or his cohorts.
Around 4:17 a.m. on February 27, 2015, after observing the
complainants win money at the casino, [Brunson] and his co-
conspirators followed Mr. Murray and Mr. Brown out of the casino.
Casino video feeds depicted that the complainants had taken a
cab to Murray’s tattoo parlor in the area of 31st and Berks Street
in the City and County of Philadelphia. Casino video feeds also
depicted [Brunson] and his cohort immediately leave the casino
parking lot and follow the complainants’ cab.
Police sourced real time video feeds then displayed [Brunson’s]
vehicle circle the block where the victims had alighted. The same
video feed had also shown a man with a build strikingly similar to
[Brunson’s] portly stature, walk and peek around the building
corner just before the apartment had been forcibly entered. The
victim Kasheef Murray testified convincingly at trial that while he
and Isaiah Brown were relaxing in the tattoo parlor, someone
kicked in the front door and four men entered. Three out of four
invading men were wearing some handkerchief or shirt over their
face to mask their identity and all four of them were allegedly
armed with guns.
Immediately upon forcibly entering the tattoo parlor, one of the
men shot complainant Kasheef Murray in the hip. One of the
intruders specifically demanded the money that the men had won
at the casino. The intruders stripped both victims of their clothing
and took cash money, an iPhone, Murray’s iPad and Brown’s
wallet. After the attack, both victims were transported to Temple
Hospital for immediate emergency treatment.
While in the emergency room, complainant Murray gave a
statement to Officer Patrick Heron. At trial, Officer Patrick Heron
(Badge #5205) testified as to what Murray had told him:
OFFICER HERON: He told me that ... he was at the
casinos earlier. And after the casinos, him and his buddies
went to a tattoo parlor on North 32nd [sic] Street to chill
out afterwards... While inside there he, all of a sudden,
heard several kicks at the front door. Next, he stated that
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the front door opened up. Four black males armed with
guns entered. They had red and white shirts on their face.
One of the black males said, “Give up your winnings. Give
up the money you won at the casino.” Next thing that Mr.
Murray knew, he heard a gunshot. He told me that the one
male stole cash from him and an iPhone and an iPad—iPod,
I believe.
Later, when Detective Michael Rocks presented a photo array to
Murray, he identified [] Tuck as one of the men from the casino.
Based on Murray’s statement, police obtained video surveillance
from the SugarHouse Casino. The video showed [] Brunson and
[] Tuck exiting the casino, then complainants Murray and Brown
exiting the casino and entering a cab, followed by Orr and Myers
exiting the casino and entering a white Ford. Shortly after
[Brunson] and Tuck left the casino, the video displays a silver Jeep
lingering in an overflow parking lot prior to Murray and Brown’s
cab leaving. Police also recovered video footage from a
surveillance camera near the complainant Murray’s tattoo parlor
which showed a white Ford car and silver Jeep in the area around
the time of the shooting robbery.
Officer Jayson Troccoli, who had known [Brunson] and [] Tuck
from his district, identified the men from still photographs of the
casino surveillance footage. Officer Troccoli located a silver Jeep
Cherokee consistent with the vehicle depicted in the surveillance
video and subsequently conducted an automobile stop. When he
approached the driver’s side of the vehicle, he recognized
[Brunson] as the driver. While executing a search warrant, the
police recovered complainant Brown’s wallet from the Jeep.
Following his arrest, [Brunson] gave a written confession to
Detective Rocks in which he identified his co-conspirators.
After arresting [Brunson], police obtained a search warrant for cell
phone records, call logs, and cell site tower information for the
phones recovered from [Brunson] and Tuck. The call logs from
the phone reflected that from 4:18 a.m. to 5:20 a.m. on the
morning of the robbery, there were nine (9) separate phone calls
between [Brunson’s] phone and a phone number subscribed to
Orr. Historical cell site analysis also showed that the phones
recovered from [Brunson] and Tuck were in the same general
vicinity in areas of South Philadelphia and the area of the crime
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scene, from the period of 4:00 a.m. and 6:00 a.m. on the morning
of the robbery.
PCRA Court Opinion, 4/25/22, at 5-8 (citations omitted). Following a jury
trial, Brunson was convicted of aggravated assault, burglary, two counts of
robbery, two counts of conspiracy, criminal trespass and two counts of theft.2
He was sentenced to an aggregate of 25 to 50 years’ imprisonment. He timely
appealed and this Court affirmed the judgment of sentence. Commonwealth
v. Brunson, 52 EDA 2017, at *7 (Pa. Super. Oct. 21, 2019) (unpublished
memorandum), allocator denied, 573 EAL 2019 (Pa. April 21, 2020).
Brunson timely filed the instant PCRA petition and the PCRA court
appointed counsel. Counsel filed an amended petition and, relevant to this
appeal, raised three claims of ineffective assistance of counsel. First, he
argued that counsel had failed to investigate an exculpatory witness and call
her at trial. In support, he attached a statement from Angela Newsome
(Newsome), who claimed that she lived in the row of homes that included the
address where the shooting occurred.3 She claimed that the address never
housed a tattoo parlor and no one was inside that address on the night of the
____________________________________________
218 Pa.C.S. §§ 2702(a)(1), 3502(a)(3), 3701(a)(1)(i), 3701(a)(1)(ii), 903,
3503(a)(1)(ii), 3921(a).
3 The statement and petition identified addresses on North 15th Street. As
the events in question took place on North 31st Street, the Commonwealth
and the PCRA court noted that this appeared to be a typographical error. The
statement explained that 1928, 1930 and 1932 North 31st Street are row
houses that have separate addresses but are interconnected on the inside.
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shooting. However, someone knocked on the door of one of the other homes
that night seeking to purchase marijuana. Later, someone knocked on the
door at 1928 North 31st Street, said that they had been shot and asked for a
ride to the hospital. Newsome did not hear any noise in the house and did
not think a shooting took place inside. She alleged that a black car approached
her family members that night and told them not to say anything.
Next, Brunson argued that counsel was ineffective for failing to file a
motion to suppress his confession. He contended that he informed counsel
that he had swallowed five bags of crack cocaine, totaling approximately 1.5
grams, immediately prior to his arrest. He told detectives that he was having
trouble breathing due to the narcotics and they provided him with his asthma
medication but did not discontinue the interrogation. He requested that
counsel seek to suppress his confession based on the medical issues he was
experiencing at the time, but counsel failed to do so.
Finally, he argued that counsel was ineffective in cross-examining
Detective Anthony Vega, the Commonwealth’s cell site location expert. He
argued that counsel should have cross-examined Detective Vega more
thoroughly regarding his conclusion that his phone was in the area of the crime
scene, why he did not attempt GPS or triangulation to identify a more precise
location of the phone, whether network information had been lost by AT&T,
and whether the level of cell phone traffic or weather patterns could have
affected the data. He contended that trial counsel did not seek an expert
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witness to refute Detective Vega’s testimony but would not have needed to do
so if his cross-examination had been effective.
The Commonwealth filed a motion to dismiss the petition and the PCRA
court subsequently issued a notice of intent to dismiss without a hearing based
on lack of merit pursuant to Rule of Criminal Procedure 907. Brunson did not
file a response and the PCRA court formally dismissed the petition on August
19, 2021. Brunson timely appealed. The PCRA court did not order him to file
a concise statement pursuant to Pa. R.A.P. 1925 but has issued an opinion
addressing the claims raised in the petition.4
II.
On appeal, Brunson argues that trial counsel was ineffective for three
reasons: failure to investigate and call Newsome as a witness, failure to file
a motion to suppress his confession, and failure to properly cross-examine
Detective Vega. “To prove counsel ineffective, the petitioner must show that:
(1) his underlying claim is of arguable merit; (2) counsel had no reasonable
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4 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted). “[A] PCRA court
has discretion to dismiss a PCRA petition without a hearing if the court is
satisfied that there are no genuine issues concerning any material fact; that
the defendant is not entitled to post-conviction collateral relief; and that no
legitimate purpose would be served by further proceedings.”
Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations
omitted).
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basis for his action or inaction; and (3) the petitioner suffered actual prejudice
as a result.” Commonwealth v. Sarvey, 199 A.3d 436, 452 (Pa. Super.
2018). “Prejudice, in this context, has been repeatedly stated as requiring
proof that but for counsel’s action or inaction, there was a reasonable
probability that the proceeding would have had a different outcome.”
Commonwealth v. Diaz, 226 A.3d 995, 1007 (Pa. 2020).
A petitioner must meaningfully discuss each of the three prongs of the
ineffectiveness claim to prove he is entitled to relief. Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015). “[F]ailure to prove
any of these prongs is sufficient to warrant dismissal of the claim without
discussion of the other two.” Commonwealth v. Robinson, 877 A.2d 433,
439 (Pa. 2005) (citation omitted). Finally, counsel cannot be ineffective for
failing to pursue a meritless claim. Commonwealth v. Rykard, 55 A.3d
1177, 1190 (Pa. Super. 2012).
A.
We begin with Brunson’s claim that trial counsel was ineffective for
failing to call Newsome as a witness. To succeed on a claim that counsel was
ineffective for failing to call a witness at trial, a PCRA petitioner must establish:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew, or should have known, of the
existence of the witness; (4) the witness was willing to testify for
the defense; and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a fair trial.
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Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citation
omitted). When analyzing the prejudice prong under our standards for
ineffectiveness, we must determine whether there is a reasonable probability
that the outcome of the trial would have been different if the witness had
testified. Id. at 333-34.
Brunson’s limited argument, which comprises a single page of his brief,
fails to meaningfully address each of the prongs of an ineffectiveness claim.
Accordingly, his argument fails on that reason alone. Reyes-Rodriguez,
supra; Robinson, supra. Moreover, upon review of Newsome’s witness
certification and the evidence presented at trial, we cannot conclude that
Brunson has established that he was prejudiced by counsel’s failure to
investigate and present her as a witness. Newsome claimed in the statement
that there was never a tattoo parlor at 1932 North 31st Street and that she
believed a shooting took place outside on the street on the night in question.
Whether the address housed a tattoo parlor was irrelevant to whether a
shooting occurred there; the alleged motivation for the robbery was not any
profits from the tattoo parlor but rather the victims’ winnings from the casino.
In any event, Detective Rocks verified that the address contained chairs and
tattooing equipment during his initial investigation and testified to those facts
at trial. Newsome’s belief that the address did not contain a legitimate tattoo
parlor would not have affected the ultimate resolution of the case.
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Newsome’s testimony that a shooting took place outside rather than in
the building on the night in question likewise would not have affected the
outcome of the case given the weight of the countervailing evidence presented
at trial. As the PCRA court explained, surveillance video from the casino and
North 31st Street, Brunson’s cell phone contacts with one of the co-
conspirators, the cell site analysis, Brunson’s confession and the recovery of
a victim’s wallet from his vehicle all firmly established his complicity in the
robbery. See PCRA Court Opinion, 4/25/22, at 12-13. Against this evidence,
there is no reasonable probability that Newsome’s testimony would have
changed the outcome of the trial. Wantz, supra. No relief is due.
B.
Next, Brunson claims that trial counsel was ineffective for failing to file
a motion to suppress his confession. In his argument on this claim, Brunson
faults the trial court for finding without an evidentiary hearing that trial
counsel had a strategic basis for declining to file the motion. He contends that
a hearing was necessary to determine whether the omission was reasonable.
Brunson does not discuss let alone prove the remaining elements of his
ineffectiveness claim: that his suppression claim had arguable merit or that
he was prejudiced by counsel’s failure to file the motion. This alone precludes
him from obtaining relief on this claim, as it is well-established that a
petitioner bears the burden of proving each of the three elements of his
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ineffectiveness claim. Reyes-Rodriguez, supra; Robinson, supra. As he
has failed to do so, this issue merits no relief.
In addition, the PCRA court, which sat as the trial court, rejected this
claim based on its assessment of Brunson’s credibility during his trial
testimony. See PCRA Court Opinion, 4/25/22, at 13-14. As the PCRA court
explained, Brunson testified under oath at trial that he did not make the
confession at all and that it was fabricated by detectives wholesale. The PCRA
court concluded that his self-serving trial testimony both directly contradicted
his claims in his PCRA petition and severely undercut his credibility. Id. We
may not disturb such a credibility determination on appeal. Commonwealth
v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Additionally, as discussed in Part
II.A, supra, the evidence presented at trial firmly established Brunson’s guilt
even in absence of his confession. Accordingly, we cannot conclude that he
was prejudiced by trial counsel’s failure to seek to suppress his confession.
C.
Finally, Brunson argues that trial counsel was deficient in cross-
examining Detective Vega regarding the cell site location analysis that placed
his cell phone in the vicinity of the crime scene at the time of the robbery. He
baldly claims that a more effective cross-examination could have refuted
Detective Vega’s conclusions. He faults trial counsel for failing to probe into
why Detective Vega did not use GPS or triangulation technology to pinpoint
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the phones’ locations and for failing to establish whether call volume or
weather can affect the cell site analysis.
Again, to establish prejudice for the purposes of an ineffectiveness
claim, a petitioner must establish a “reasonable probability” that but for
counsel’s actions or inactions, “the proceeding would have had a different
outcome.” Diaz, supra.
Trial counsel need not introduce expert testimony on his client’s
behalf if he is able effectively to cross-examine prosecution
witnesses and elicit helpful testimony. Additionally, trial counsel
will not be deemed ineffective for failing to call a medical, forensic,
or scientific expert merely to critically evaluate expert testimony
that was presented by the prosecution. Thus, the question
becomes whether or not defense counsel effectively cross-
examined the Commonwealth’s expert witness.
Commonwealth v. Williams, 141 A.3d 440, 464 (Pa. 2016) (citation
omitted). In Williams, a capital murder case, an alleged eyewitness to the
crimes testified that victims were shot inside a van and tossed outside of the
moving vehicle by the defendants. In PCRA proceedings, the defendant
introduced expert testimony from a forensic pathologist and a crime scene
reconstruction expert to establish that the victims’ injuries were inconsistent
with that narrative. After hearing this testimony, the trial court concluded
that counsel had been ineffective and granted a new trial.
Our Supreme Court agreed and concluded that the defense cross-
examination in the initial trial was ineffective based on two factors. First, trial
counsel did not question the Commonwealth’s medical experts at all, and
counsel for co-defendants similarly did not elicit relevant testimony from those
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experts that would have undercut the witness’s version of events. Id.Second, at the PCRA hearing stage, the defendant’s expert testified that his
examination of the victims’ wounds and blood flow patterns contradicted the
eyewitness testimony. Id. at 464-65. Because trial counsel failed to
challenge the Commonwealth’s forensic evidence and present the jury with
readily-available evidence that undercut the eyewitness testimony, our
Supreme Court held that the cross-examination was ineffective.
Here, our review of the trial transcript reveals that counsel’s cross-
examination of Detective Vega was abbreviated. He asked for clarification
that the cell tower at issue near the crime scene covered a roughly .8 mile
range. He also reiterated, as Detective Vega testified on direct examination,
that the cell phone analysis could not reveal who was using the phone, the
purpose of the calls or what was said. This questioning was in line with the
strategy of arguing that Brunson was not among the men who robbed Murray.
However, Brunson does not explain how further cross-examination
would have been helpful in disproving the Commonwealth’s case or rebutting
Detective Vega’s testimony. Unlike in Williams, he merely speculates that
the weather or amount of cell phone traffic at the time of the robbery could
have affected the cell site analysis but did not support this contention with
reference to any evidence. Without establishing that the answers to these
questions would have inured to his benefit, he cannot claim that he was
prejudiced by their omission. Williams, supra, at 466-67. No relief is due.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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