Com. v. Bryant, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BEVERLY BRYANT :
:
Appellant : No. 433 EDA 2020
Appeal from the PCRA Order Entered January 21, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009384-2016.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 29, 2021
Beverly Bryant appeals from the order denying her first timely petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
On March 22, 2017, a jury convicted Bryant of intimidation of a witness,
criminal use of a communication facility, possessing an instrument of crime,
and terroristic threats. Thereafter, the trial court sentenced Bryant to an
aggregate term of six to twenty-three months of incarceration and a
consecutive two-year probationary term. Following the denial of a post-
sentence motion, Bryant filed a timely appeal to this Court. In its Rule 1925(a)
opinion, the trial court summarized the testimony supporting Bryant’s
convictions as follows:
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At trial, the Commonwealth presented the testimony of
complainant Rebecca Stokes. Ms. Stokes testified that, in
2011, she began renting a house located at 5533 Mascher
Street in Philadelphia. [Bryant’s] mother, Barbara Bryant,
was the owner and landlord of the property. In July, 2015,
Ms. Stokes and Barbara Bryant started to have
landlord/tenant issues. Angered over a rent balance of
$350, Barbara Bryant showed up at the residence with a
gentleman named Jerome on November 23, 2015. Jerome
stuck the barrel of a shotgun through the front door’s mail
slot, while he and Barbara Bryant yelled at Ms. Stokes to
vacate the premises. When the shotgun was removed, Ms.
Stokes peered through the mail slot and saw Barbara Bryant
and Jerome enter a blue Jeep and drive away. Ms. Stokes
immediately called the police to report the incident. She
subsequently met with detectives for an interview, and on
December 23, 2015, Barbara Bryant was placed under
arrest.
On August 23, 2016, at approximately 9:00 a.m., Ms.
Stokes appeared for court pursuant to a subpoena in
Barbara Bryant’s criminal case. The proceeding was
scheduled before Judge Perez in courtroom 704. Ms. Stokes
testified that when she exited the elevator on the 7th floor,
she saw [Bryant] and her mother, Barbara Bryant, standing
outside the courtroom. The two immediately began calling
her a “fat bitch” and “gorilla bitch”. Ms. Stokes giggled at
their insults, at which point [Bryant] stated, “It’s all right.
You can laugh now. When you get out of the courtroom,
I’m going to have you killed, bitch.” Ms. Stokes testified
that she felt scared for her life, particularly since she already
had the encounter with [Bryant’s] mother, Barbara Bryant
and her friend, Jerome, who pointed a shotgun [] at her.
Ms. Stokes quickly entered the courtroom to speak with the
assistant D.A., Ms. [Laquan] Lightfoot. A.D.A. Lightfoot was
in the middle of another case, so Ms. Stokes texted her
boyfriend that she had just been threatened, she was
scared, and to please come down to the courthouse.
Shortly thereafter, A.D.A. Lightfoot summoned Ms.
Stokes into the hallway. When she started to speak with
A.D.A. Lightfoot. Ms. Stokes saw [Bryant] holding and
pointing her cell phone with the flash on - - indicating to Ms.
Stokes that [Bryant] was taking pictures of them. A.D.A.
Lightfoot asked a police officer to go over to [Bryant] and
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tell her to stop taking pictures. The officer walked over and,
upon observing [Bryant’s] phone, stated, “[I]t’s not a
picture . . . She’s taking a video.” A.D.A. Lightfoot asked
for the phone, but [Bryant] refused to comply. The officer
attempted to retrieve it, but [Bryant] resisted: “She was
fighting for the phone.” Ms. Stokes testified that [Bryant’s]
filming her made her feel even “more threatened”.
The Commonwealth also presented the testimony of
Philadelphia Police Officer Kevin Klein. Officer Klein testified
that, on August 23, 2016, he was inside the [c]ourthouse in
the hallway on [the] 7th floor, waiting to speak to A.D.A.
Lightfoot about an unrelated case. As he was standing
there, he noticed [Bryant] standing to the right of him,
holding a cell phone sideways with the camera flash “steady
on”. A.D.A Lightfoot asked him if [Bryant] was taking
photographs of her and Ms. Stokes. Officer Klein walked
behind [Bryant] and observed that she was actually
recording a video of them, and relayed that information to
A.D.A Lightfoot. A.D.A. Lightfoot told him to “hold on a
second” and went into the courtroom. She returned one
minute later and advised that the judge needed to see
[Bryant] in the courtroom. At that point, Officer Klein
observed [Bryant] quickly scrolling through her
photos/videos, so he confiscated her phone to prevent her
from destroying evidence. He escorted [Bryant] into the
courtroom and placed the phone down on counsel’s desk.
Approximately 30 minutes later, A.D.A. Lightfoot informed
him that the Commonwealth would be pressing charges
against [Bryant]. Officer Klein, accompanied by [two other
officers], in addition to the sheriff, attempted to escort
[Bryant] out of the courtroom to place her under arrest.
[Bryant], however, held her hands very tight against her
body and vehemently resisted. It took all four agents to
place her in handcuffs.
Trial Court Opinion, 4/5/18, at 2-4 (citations omitted).1
____________________________________________
1 The Commonwealth also called A.D.A. Lightfoot at Bryant’s trial, and her
testimony was largely consistent with that presented by Officer Klein.
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In her direct appeal, Bryant raised six issues, including a claim that the
Commonwealth’s “failure to disclose and turn over to the defense that Officer
Klein was on a ‘do not call to testify’ list” constituted a Brady2 violation, and
was “a material fact that should have been presented to the jury[.]” Bryant,
unpublished memorandum at 3 (excess capitalization omitted).
On January 8, 2019, we adopted the trial court’s Rule 1925(a) opinion
as our own in rejecting Bryant’s claims. Id. at 8-9.
Bryant filed a pro se PCRA petition on January 17, 2019, and the PCRA
court appointed counsel. PCRA counsel filed an amended petition on July 12,
2009. In this amended petition, Bryant asserted that “[a]ppellate counsel was
ineffective for failing to file for consideration before the Superior Court panel.”
PCRA Petition, 7/12/19, at 4.
The PCRA court held a hearing on January 21, 2021, at which the parties
discussed the issue raised in the amended petition. Although the PCRA court
offered to issue a Pa.R.Crim. 907 notice of its intent to dismiss Bryant’s
petition without an evidentiary hearing, because Bryant was present, PCRA
counsel agreed that a Rule 907 notice was not needed. See N.T., 1/21/20, at
7-8. At the conclusion of the hearing, the PCRA court denied Bryant’s petition.
This timely appeal followed. Both Bryant and the PCRA court have complied
with Pa.R.A.P. 1925.
____________________________________________
2 Brady v. Maryland, 373 U.S. 83 (1963).
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Bryant now raises the following issues:
I. Whether the [PCRA] court was in error in denying
[Bryant’s] PCRA petition without an evidentiary
hearing on the issues raised in the amended PCRA
petition regarding [] counsel’s ineffectiveness.
II. Whether the [PCRA] court erred in not granting relief
on the PCRA petition alleging counsel was ineffective.
Bryant’s Brief at 8.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
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Bryant claims that the PCRA court erred in dismissing, without a hearing,
her claim that appellate counsel was ineffective for failing to file with this Court
a motion to reconsider the denial of her appeal based on an alleged factual
error made by the panel. To obtain relief under the PCRA premised on a claim
that counsel was ineffective, a petitioner must establish by a preponderance
of the evidence that counsel’s ineffectiveness so undermined the truth
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). “Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) the
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
To support her claim of ineffectiveness, Bryant avers “appellate counsel
was ineffective for failing to correct a crucial issue on appeal.” Bryant’s Brief
at 20. She further argues:
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The Superior Court had a critical issue in the argument
regarding Officer Klein incorrect. Counsel should have
asked for a reconsideration of the appeal before the three
judge panel or court en banc.
***
The Superior Court’s statement that Officer Klein’s
placement on the “do not call” list occurred after [Bryant’s]
trial is erroneous. [Bryant’s] trial was in August 2017 (the
Superior Court Opinion states that trial was in August of
2016)[.] The incident leading to Officer Klein’s placement
on the list occurred in December of 2016, about eight
months before [Bryant’s] trial. The significance of March
2018 is only that is when the list was publicized. Thus, at
the time of trial, the District Attorney’s Office already
considered Officer Klein to be an unreliable witness but
failed to notify [Bryant].
***
The Commonwealth’s case was primarily based upon
testimony from this discredited officer.
Bryant’s Brief at 20-21 (emphasis omitted).
The PCRA court found no merit to Bryant’s claim. The court first made
the following observations:
[Bryant’s] trial, in fact, took place in March 2017. Officer
Klein was convicted of simple assault, driving under the
influence and leaving the scene of an accident on August 16,
2018. The incident giving way to the conviction occurred on
December 14, 2016. Although it is unknown when Officer
Klein was placed on the “do not call” list, he was on that list
at the time of [Bryant’s] trial. The officer’s misconduct
occurred four (4) months after the incident on August 23,
2016, that gave rise to the instant case.
PCRA Court Opinion, 3/16/20, at 3 (unnumbered).
The court, citing our decision on direct appeal, then reasoned as follows:
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In her Amended Petition, [Bryant] points out that the
Superior Court made an error in the date of [her] trial and
that it failed to note that the “do not call list” was publicized
in March 2018. However, the fact remains that the
Superior Court held that [Bryant] waived her Brady
claim altogether. The additional finding that “even if
[Bryant] properly preserved her [Brady] claim, she would
not be entitled to relief” is just that: an additional finding.
Notwithstanding the error in the dates, the Superior Court
found that “even if the court discounted Officer Klein’s
testimony, two other witnesses testified to their
observations of [the] underlying incident, and [Bryant’s]
proclamation she had [the] right to record [Ms. Stokes] with
her cell phone corroborated witnesses’ testimony. . . ” The
[Superior] Court itemizes four (4) additional reasons why
[Bryant] would not be entitled to relief notwithstanding her
Brady claim.
PCRA Court Opinion, 3/16/20, at 4 (unnumbered) (emphasis in original).
Our review of the record, including this Court’s prior memorandum,
supports the PCRA court’s conclusion. In our decision on direct appeal,
although we chose not to restate the trial court’s summary of facts as
enumerated above, we did note that the jury convicted Bryant in 2017.
Bryant, unpublished memorandum at 1. Thus, our statement in the
parenthetical supporting our adoption of the trial court’s opinion that Bryant’s
trial occurred in 2016 is clearly a typographical error.
In addition, the misstatement regarding when Officer Klein was placed
on the “do not call” list is of no significance, given our conclusion that even
without Officer Klein’s testimony, the testimony of two other witnesses
supported the jury’s guilty verdicts.
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Bryant’s claims to the contrary are unavailing. Initially, we note that
Bryant does not claim appellate counsel was ineffective for failing to preserve
the Brady issue on direct appeal; rather, she focuses on counsel’s failure to
seek panel reconsideration. In addition, although Bryant presents the
tripartite test for ineffective assistance, she does not create a factual issue as
to how Officer Klein’s misconduct and placement on the “do not call list”
relates in any way to her case. As the PCRA court stated, “[Bryant] has not
demonstrated that she ever requested that appellate counsel pursue
reconsideration by the Superior Court, nor has she shown that there is a
reasonable probability that reconsideration would have been granted.” PCRA
Court Opinion, 3/16/20, at 3 (unnumbered). Thus, the PCRA court did not err
in denying her PCRA petition without first holding an evidentiary hearing.
In sum, because our review of the record supports the PCRA court’s
denial of Bryant’s PCRA petition, we affirm the order denying Bryant post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/21
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