Com. v. Brown, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TARIQ SULTAN BROWN :
:
Appellant : No. 2622 EDA 2019
Appeal from the PCRA Order Entered August 23, 2019
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002261-2016
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 13, 2020
Tariq Sultan Brown appeals from the order entered in the Delaware
County Court of Common Pleas on August 23, 2019, dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§
9541-9546 after a hearing. Brown raises three claims of ineffective assistance
of counsel. We affirm.
Brown was charged with rape, statutory sexual assault, indecent
assault, endangering the welfare of a child and sexual assault after his
stepdaughter C.M. reported in December 2015 that Brown had sexually
assaulted her three years prior, when she was fifteen years old. After his first
trial ended in a mistrial due to a hung jury, a second trial took place from
November 29, 2016 until December 1, 2016. The jury found Brown guilty of
the above charges.
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On May 22, 2017, Brown was sentenced to an aggregate term of ten to
twenty years’ incarceration, followed by ten years’ probation. Brown filed a
timely notice of appeal, which was later withdrawn. Counsel then filed the
instant PCRA petition. A hearing was held, after which both parties were given
the opportunity to submit memoranda. On August 23, 2019, the PCRA court
dismissed the petition.
Brown raises the following issues on appeal:
1. Did the PCRA court err when it held that prior counsel was not
ineffective for failing to impeach C.M. with her withdrawn criminal
complaint?
2. Did the PCRA court err when it held that prior counsel was not
ineffective for failing to request a curative instruction after eliciting
prior bad acts testimony?
3. Did the PCRA court err when it held that prior counsel was not
ineffective for failing to move for a mistrial after the trial court
failed to give a curative instruction following the prosecutor's
improper commentary on [Brown] and his character witnesses'
truthfulness during closing arguments?
Appellant’s Brief, at 2.
Our standard of review of a PCRA court’s denial of a petition for post-
conviction relief is well-settled: We must examine whether the record supports
the PCRA court’s determination, and whether the PCRA court’s determination
is free of legal error. See Commonwealth v. Hall, 867 A.2d 619, 628 (Pa.
Super. 2005). The PCRA court’s findings will not be disturbed unless there is
no support for the findings in the certified record. See Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our scope of review is limited
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by the parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d
542, 544 (Pa. Super. 2005).
Here, all of Brown’s claims allege ineffectiveness of prior counsel. To
determine whether the PCRA court erred in dismissing Brown’s petition on the
claims of ineffectiveness of counsel, we must assess whether Brown
established all three elements of an ineffectiveness claim:
In order for Appellant to prevail on a claim of ineffective assistance
of counsel, he must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place … Appellant must demonstrate: (1) the underlying claim is
of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted).
Moreover, “[w]e presume counsel is effective and place upon Appellant
the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d
1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant
relief only if Appellant satisfies each of the three prongs necessary to prove
counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-
22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim
if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at
321 (citation omitted).
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In his first issue, Brown argues that trial counsel was ineffective for
failing to impeach C.M. with her “withdrawn criminal complaint”. Appellant’s
Brief, at 2. It bears remarking that in the argument section of Brown’s brief,
he claims trial counsel was ineffective for failing to impeach C.M. with “her
December 18, 2015 police report” in which he claims C.M. declined to file
charges. See Appellant’s Brief, at 10 (emphasis supplied). This differs from
how Brown phrased the issue in the “Statement of Questions Involved” section
of his brief as well as in his Rule 1925(b) concise statement. See Appellant’s
Brief, at 2; see also Appellant’s 1925 Concise Statement, at ¶1. Therefore,
to the extent that Brown argues trial counsel should have impeached C.M.
with the police report, this issue could be deemed waived. See Pa.R.A.P. 302
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Nevertheless, as the trial court was able to ascertain
the actual document Brown is referencing based on the date, we will briefly
address the matter as well.
Our review of the record indicates that no prior criminal complaint was
ever filed, nor for that matter withdrawn. After a review of the record it is
clear that Brown is referencing an entry in a police department incident report
of a meeting that occurred on October 18, 2015. See Exhibit C-2, at 1-6.
Brown emphasizes that during a discussion with police on December 18, 2015,
C.M. stated she did not intend to file criminal charges, and that trial counsel
should have impeached her regarding that statement.
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On the contrary, it was C.M.’s mother, C.B., who spoke with Officer
Stephen Jones on October 18, 2015 to report that her daughter had been
sexually assaulted by her step-father. See Exhibit C-2, at 4. In his narrative
of that meeting, Officer Jones wrote that C.B. indicated that C.M. did not wish
to press charges and she was there to explore her options. See id.
Therefore, it was the victim’s mother, not the victim herself, who spoke
with the police on the date in question. Further, trial counsel questioned
Detective Houghton regarding Officer Jones’s entry in the incident report and
specifically highlighted that C.B. reported that her daughter initially did not
want to file criminal charges. See N.T., 11/30/2016, at 122-126. While Brown
argues that this evidence was hearsay and therefore improper, we note that
the Commonwealth did not raise any objection to it. See id. As a result, the
jury was not precluded from considering this testimony. See Commonwealth
v. Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002).
Therefore, trial counsel did present the jury with testimony that C.M.
had initially not planned to file charges. We further note that the
Commonwealth did not seek to contradict this assertion, and concedes it on
appeal. See Appellee’s Brief, at 9 (“the victim and her mother expressed an
initial reluctance on their part to pursue her victimization as a criminal
matter”).
Brown does not assert any new information that would have been gained
by confronting C.M. with this information. In fact, it is likely that such a
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confrontation would have been detrimental to Brown’s argument; C.M. would
have been given an opportunity to explain any number of possible reasons
why she was reluctant. In fact, C.M. testified that Brown had, at one point,
threatened “Don’t fight me, don’t give me any trouble here. Otherwise, I am
going to kill your mother.” N.T., 11/30/2016, at 52. Asking C.M. about her
initial reluctance carried significant risks and Brown does not identify any
corresponding benefits. Accordingly, Brown has failed to show he was
prejudiced by trial counsel’s failure to cross-examine C.M. on her initial
reluctance to file charges. No relief is warranted.
Brown’s second issue involves C.B.’s testimony. During trial counsel’s
cross-examination of C.B., the following exchange occurred regarding C.B.’s
relationship with Brown:
Q. Why weren’t you getting along?
A. Why [weren’t we] getting along? Do you want me to answer
why [we weren’t] getting along?
Q. I do.
A. Okay. We [were] not getting along because we stayed arguing
and [Brown] has a history of physical abuse against me.
Q. Prior to 2012
A. For the whole marriage.
Q. Whole marriage.
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N.T., 11/30/2019, at 106. Brown argues that trial counsel was ineffective for
failing to request a curative instruction after eliciting this prior bad acts
testimony.
While acknowledging that trial counsel had no reasonable basis for not
requesting a curative instruction in this instance, the PCRA court nevertheless
found Brown suffered no prejudice from the admission of this testimony. The
court concluded that any error by trial counsel for not requesting a cautionary
instruction does not entitle Brown to relief.
In explaining its decision to deny this issue, the trial court summarized
the pertinent trial testimony as follows:
[C.M.] testified that in May of 2012 [Brown] raped her. She lived
with her mother [“C.B.”], nine siblings and [Brown] in a house
located in Yeadon, Delaware County, PA. At the time of the rape
[C.B.] and [Brown] were "kind of a little separated" and [C.B.]
was sleeping with C.M. and her younger sisters on the third floor
of their home. On that night [Brown] came home from work close
to midnight. C.M. was up late working on a high school project
that was due the next day. She finished her work and as she
headed upstairs to the third-floor bedroom [Brown] called her into
the second-floor master bedroom that he had shared with C.B. He
asked C.M. to get the television remote. C.M. complied and started
to leave the room when [Brown] called her back. [Brown] told
C.M. that she was pretty, like her mom was at the same age.
[Brown] got behind C.M. He picked her up and put her on the bed,
grabbed her by her wrists and held them tightly, pulled her pants
down and put his penis in her vagina. C.M. could not sleep after
the assault. She testified that eventually she fell asleep but woke
up about three hours later and went to school.
[Brown] was no longer in the home as of September 21, 2015.
C.M. testified that she was embarrassed and ashamed of what had
happened and that she did not tell her mother about the rape until
about three years and seven months later after [Brown] moved
from the house. She did not confide in anyone, including her
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mother and best friend. During the intervening period she tried to
avoid [Brown] and was never in a room alone with him again. She
described the intervening years when she struggled with
depression and at school. Her grades fell. She was angry and
blamed her mother for putting her in a position where the assault
could happen. She testified that she took pills and was hospitalized
twice. She began "cutting" herself and did not graduate from high
school. At the suggestion of friends she went to therapy. Her
therapist was the first person that she confided in about the rape.
Her therapist encouraged her to report the rape to her family when
she was ready and eventually, in December of 2015 she followed
that advice. About a month later she went to the police
department and gave a statement. A forensic interview followed
shortly thereafter in January of 2016.
Trial Court Opinion, 10/29/2019, at 8-9. The trial court noted that this case
hinged on the credibility of C.M. See id. at 8. In concluding that Brown failed
to satisfy the prejudice necessary to prevail on this ineffectiveness claim, the
court explained
Trial counsel explored all of these areas that reflected on C.M.'s
credibility. He knew that [Brown] had three jobs and worked an
"insane" number of hours and "he was never there for them to
have any sort of relationship difficulty." Trial counsel believed that
C.M. did not "make a good impression at trial." He focused on the
three-year seven month delay in reporting, the fact that C.M.
continued to communicate with [Brown] during that period and
that she did not reveal the rape to friends or family earlier. He
highlighted the many inconsistencies and discrepancies that arose
during the investigation and in C.M.'s testimony at the preliminary
hearing and earlier trial. C.B. was not an eye witness to the rape.
It was clear that her relationship with [Brown] had soured and
that he was no longer considered a part of the family. Her
statement was isolated and reflected on the relationship between
herself and [Brown] and did not suggest that he was an abusive
father to his children and step-father. Given all of the foregoing,
Petitioner has failed to prove that "but for" C.B.'s brief and
unexpected statement the outcome at trial would have been
different.
Id. at 11.
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In the context of an ineffectiveness claim, counsel's failure to request a
cautionary instruction regarding evidence of other crimes or prior bad acts
does not constitute per se ineffectiveness; “[r]ather, in order to obtain relief
under such a claim, a defendant must still satisfy each of the three prongs of
the test for ineffective assistance of counsel.” Commonwealth v. Buehl, 658
A.2d 771, 778 (Pa. 1995).
Upon review of the record, we find support for the PCRA court's
conclusion that Brown failed to demonstrate that he was prejudiced by trial
counsel’s failure to object or seek cautionary instructions
C.B. offered her statement that Brown had a history of physical abuse
against her for the length of their marriage to explain why they were not
getting along at the time C.M. reported the rape to C.B. C.B. did not assert
that Brown had sexually abused her; nor did she testify that she had witnessed
Brown abuse C.M. As the PCRA court noted, the Commonwealth’s only direct
evidence of Brown’s guilt came from C.M.’s testimony. Brown has not
established that the jury would have found C.M.’s testimony not credible in
the absence of C.B.’s assertion of abuse at the hands of Brown. Therefore,
Brown fails to satisfy the prejudice necessary to prevail on an ineffectiveness
claim. Accordingly, the PCRA court properly denied relief on this basis.
Brown’s third, and final, issue focuses on trial counsel's failure to request
a mistrial after the Commonwealth's closing argument to the jury. Specifically,
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Brown challenges the following portion of the prosecutor’s closing argument
regarding stipulated character testimony:
We stipulated to character. Now had the character witness come
in I wouldn’t have asked him any questions. I would never ask
questions of a character witness. As far as I am concerned they
are victims in a different way than [C.M.] … They have been duped
just like everyone else, just like he is trying to dupe you. We know
that men of seemingly great character commit these crimes.
These crimes happen to our most prominent figures, they happen
in our most sacred institutions. Men of great character do horrible
things behind closed doors, we know this, your common sense
tells you that.
N.T., 12/1/2016, at 56-57. Brown’s counsel eventually asked for a sidebar to
discuss the remark, but no official objection was lodged. In response, the court
included in its charge to the jury a standard character instruction.
To establish that trial counsel was ineffective for failing to request a
mistrial, Brown must first establish that the prosecutor actually committed
misconduct. If the prosecutor did not, Brown cannot establish that his claim
has arguable merit.
For the statements identified by Brown to constitute prosecutorial
misconduct, he must establish that they were more than exuberant advocacy
or a biased recitation of the evidence:
It is well established that a prosecutor is permitted to vigorously
argue his case so long as his comments are supported by the
evidence or constitute legitimate inferences arising from that
evidence.
In considering a claim of prosecutorial misconduct, our
inquiry is centered on whether the defendant was deprived
of a fair trial, not deprived of a perfect one. Thus, a
prosecutor's remarks do not constitute reversible error
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unless their unavoidable effect ... [was] to prejudice the
jury, forming in their minds fixed bias and hostility toward
the defendant so that they could not weigh the evidence
objectively and render a true verdict. Further, the allegedly
improper remarks must be viewed in the context of the
closing argument as a whole.
Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (internal
citations and quotation marks omitted).
We agree with the trial court that the prosecutor's discussion of
character and reputation testimony was permissible argument. “The
Commonwealth [is] permitted to ask the jury to consider the source of that
character testimony in assessing the witnesses' credibility and the weight to
be given to their testimony.” Commonwealth v. Gibson, 688 A.2d 1152,
1165 (Pa. 1997) (citation omitted).
The prosecutor’s remarks addressed the impact and quality of Brown’s
character testimony. The highlighted statement merely pointed out that
crimes of this nature take place in secret, so although the witnesses may
speak to the appellant’s seemingly unassailable character in the community,
they would be unaware of an appellant’s behavior in private. The prosecutor
properly pointed out the inherent limits of reputation evidence: people with
admittedly outstanding reputations may nevertheless act inconsistently with
that reputation. Moreover, the district attorney did not impugn Brown’s
character, but simply encouraged the jury to view reputation evidence from
people who know him outside of his private life with a critical eye. Therefore,
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such remarks were not improper and did not constitute prosecutorial
misconduct.
On this record, we must conclude that the impact of the highlighted
passage on the jury was not so prejudicial as to require trial counsel to
request, nor the trial court to grant, a mistrial. The PCRA court did not err in
finding that the prosecutor's remarks were a permissible comment on the
credibility and the weight of the character evidence. See Commonwealth v.
Van Cliff, 397 A.2d 1173, 1178 (Pa. 1979) (finding “[t]he jury merely was
encouraged to view appellant's character testimony with a critical eye rather
than to conclude that appellant's character was necessarily bad”). Brown is
due no relief on his third claim.
As none of Brown’s issues on appeal warrant relief, we affirm the order
dismissing Brown’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/20
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