Com. v. Brown, J. ( 2022 )

J-S35030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDON SCOTT BROWN :
:
Appellant : No. 242 MDA 2021
Appeal from the PCRA Order Entered January 22, 2021,
in the Court of Common Pleas of Huntingdon County,
Criminal Division at No(s): CP-31-CR-0000577-2015.
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 16, 2022
Jordon Scott Brown appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The PCRA court detailed the pertinent facts leading to Brown’s
convictions as follows:
On the night of November 28, 2015, [Brown] engaged in
a drug-fueled, paranoid, and quasi-suicidal episode in
which, after a fight with his girlfriend, he set fire to her
residence, fired two shots from his shotgun at Pennsylvania
State Police troopers outside, exited the residence and got
into an armed confrontation with those troopers, and only
finally complied with their commands when his brother,
standing behind the troopers and begging him to put the
gun down, was somehow able to get through to [Brown] in
his drug-induced daze. The shots were fired in the direction
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* Retired Senior Judge assigned to the Superior Court.
J-S35030-21
of a neighbor’s home, which was occupied by a family with
two children, and who were required to evacuate their home
in the middle of the night, after being shot at, because of
the risk of the fire started by [Brown] spreading to their
home.
The responding officers that evening were troopers
Michael Harris and Lance Howell. They were dispatched to
the residence (a mobile home) pursuant to a 911 call from
[Brown’s] then girlfriend, Rachel Ann Labus, who reported
that she was in the trailer and that [Brown] was suicidal and
had a gun.
Both troopers were in uniform and were in a marked PSP
patrol vehicle. Dispatch lost contact with Ms. Labus after
the initial call, and as the troopers arrived on scene they did
not know whether she was still in the trailer. Dispatch did
relay that prior to losing contact with her she said she
believed she had heard [Brown] fire a shot.
The troopers parked on the road, approximately three
hundred feet from the trailer, and began their approach.
Both were carrying long guns due to the nature of the call,
and there was very little cover available in the area around
the trailer. When they were approximately fifteen yards
from the trailer Trooper Harris heard a shot and saw a
muzzle flash from the rear east window. The shot struck
near where Trooper Harris was standing.
After the first shot was fired the troopers began moving
to a shed near the driveway, attempting to use it for cover.
[Brown] fired a second shot at the troopers as they were
seeking cover. The second shot struck a wood fence near
where Trooper Howell was standing. The fence is on the
property line, and on the other side of the fence, in the
direction that [Brown] fired, is the residence of Kenneth
Wise, Sr., Tonya Wise, and their two minor children, C.W.
and K.W. (then approximately ages fifteen and ten years
old, respectively). The Wise family was home, in their
respective bedrooms, at the time the shot was fired. The
distance between where [Brown] fired from and where
Kenneth and Tonya Wise were sleeping is less than twenty-
five yards.
Once at the shed the troopers repeatedly identified
themselves and gave commands to [Brown], shouting
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“State Police” and telling him to come out with his hands up.
[Brown] responded with “Go away State Police!” and “State
Police get the hell out of here!”
Approximately ten seconds after the above exchange,
Trooper Harris saw smoke coming from the same window
from which [Brown] had shot at him. The fire grew quickly,
as soon Trooper Harris could hear crackling coming from the
trailer, and the smoke coming out of the window became
flames. This increased the stress and anxiety placed upon
the troopers, because they did not know whether Ms. Labus
or her children were in the trailer with [Brown], and the fire
was growing rapidly. The troopers continued to identify
themselves and command [Brown] to exit the trailer with
his hands up.
Through the smoke, Trooper Harris saw that [Brown] had
exited the trailer and was standing on the porch, facing the
front door of the trailer, holding a shotgun in the “low ready”
position. [Brown] appeared to be talking to someone or
something, but due to the smoke Trooper Harris could not
tell if anyone was on the porch with [Brown] or if he was
forcing Ms. Labus and her children to stay in the trailer as it
burned. Trooper Harris told [Brown] to drop the gun, and
then moved from behind cover to close the distance
between himself and [Brown], both to gain a better view
and to be in a better shooting position if [Brown] forced the
troopers to use lethal force. Both troopers repeatedly told
[Brown] to drop his gun.
The standoff continued for a short time, with the troopers
moving closer across open ground to try to determine
whether [Brown] was holding anyone hostage in the burning
trailer, while also placing themselves at great risk should
[Brown] turn and shoot them.
Finally, Trooper Harris heard a voice behind him and
Trooper Howell saying to [Brown] “What are you doing, it’s
the State Police.” [Brown] finally responded to this voice,
and dropped the shotgun. One of [Brown’s] dogs ran out of
the trailer and down the steps, toward the troopers and the
voice behind them. [Brown’s other dog was hiding in one of
the bedrooms in the trailer, and was killed by the fire.]
[Brown] then ran down the steps, laid on the ground after
being commanded to by Trooper Harris, and was handcuffed
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by Trooper Howell, as Trooper Harris kept [Brown] covered
with his long gun.
The troopers asked [Brown] whether anyone was still in
the trailer, but his speech was slurred and
incomprehensible. The person who had shouted to [Brown]
from behind the troopers came forward and was identified
as [Dustin Brown, Brown’s brother]. [Dustin] told the
troopers that Ms. Labus and the children were safe and were
at another location. The fire had spread so quickly that the
trailer was now fully involved, so the troopers secured
[Brown] in their patrol vehicle and requested fire
department response.
[Dustin] told the troopers that he had come to the trailer
after getting Facebook messages about what was happening
with [Brown].
Trooper Howell was finally able to contact Ms. Labus, who
was at a nearby residence. She confirmed that she was
safe, and that her children were not in the trailer, but were
safe with her grandmother. Trooper Howell remained with
[Brown] while Trooper Harris went next door to the Wises’
residence to get them to evacuate, due to the risk of the fire
spreading to their residence. The Wises had taken cover in
their basement upon hearing the shots fired by [Brown].
PCRA Court Opinion, 1/22/21, at 3-7 (formatting altered; citations and
footnote omitted).1
The PCRA court further summarized the police interview with Brown:
Trooper Sean Hoffman interviewed [Brown] a few hours
after the incident. At that time, [Brown] said that he had
been using bath salts for two or three weeks, approximately
one to one and one-half grams a day. His recollection of
events was vague. He said that Ms. Labus had told him that
“some guys” were coming to the trailer to “hit it.” He
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1 The PCRA court summarized these facts based upon victim/witness
statements, the criminal complaint, and the affidavit of probable cause, as
well as testimony from the sentencing and the PCRA hearings.
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remembered “pulling the trigger with the shotgun out the
window,” and “believed that he saw someone outside and
shot.” [Brown] said that he lit the fire “to attract attention
and get some help.” He also said that he was carrying his
shotgun when he exited the trailer because he did not know
who was coming for Ms. Labus and he thought she was
“outside using more drugs.”
PCRA Court Opinion, 1/22/21, at 7 (formatting altered; citation omitted).
On September 2, 2016, Brown entered negotiated guilty pleas to
attempted manslaughter of a law enforcement officer, graded as a first-degree
felony, arson, danger of death or bodily injury, graded as a first-degree felony,
and recklessly endangering another person, graded as a second-degree
misdemeanor. The plea agreement further capped the minimum aggregate
sentence at 18½ years. In exchange, the Commonwealth agreed to dismiss
the remaining 13 counts, which included four additional first-degree felonies.
Prior to sentencing, Brown filed a motion to withdraw his guilty plea, which
the trial court denied. Thereafter, the trial court sentenced Brown to an
aggregate sentence of 18 to 36 years of imprisonment.
Brown timely appealed to this Court and challenged the discretionary
aspects of his sentence. In a non-precedential decision filed on November 30,
2017, this Court affirmed Brown’s judgment of sentence, and our Supreme
Court denied his petition for allowance of appeal on October 11, 2018.
Commonwealth v. Brown, 181 A.3d 459 (Pa. Super. 2017), appeal denied,
195 A.3d 566 (Pa. 2018).
Appointed counsel filed a PCRA petition on October 11, 2019, and
subsequently retained PCRA counsel filed the amended petition at issue on
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December 23, 2019. The PCRA court held an evidentiary hearing on February
21, 2020, at which plea counsel, appellate counsel, and Dustin Brown testified.
On September 30, 2020, the court held another evidentiary hearing at which
Brown testified. By order entered January 22, 2021, the PCRA court denied
Brown’s amended petition. Accompanying the court’s order was an opinion
with detailed factual findings regarding the incident, see supra, as well as
detailed factual findings and credibility determinations regarding the
testimony from the PCRA hearings. This appeal followed. Both Brown and
the PCRA court have complied with Pa.R.A.P. 1925.
Brown raises the following seven issues, which we have reordered for
ease of discussion:
1. Is [plea] counsel ineffective in advising [Brown] to enter
a plea of guilty to an offense which is not viable as
defined?
2. Must counsel make a reasonable investigation by
speaking to available witnesses or arranging for a private
investigator when he becomes aware, or should become
aware, of evidence and witnesses which may contradict
the Commonwealth’s case?
3. Did the PCRA court err in denying the motion for a new
trial on the charge of arson endangering others?
4. Did the PCRA court err in finding that counsel’s
ineffectiveness did not merit relief by holding that
[Brown] was not prejudiced by any of his prior counsel’s
errors?
5. Are accurate sentencing guidelines relevant when a plea
agreement calls for a “capped” minimum sentence?
6. May the reason for a sentencing being placed in or above
the aggravated range of sentencing guidelines rely on the
fact that the victim is a law enforcement officer, when
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that offense may only be committed against a law
enforcement officer?
7. Did the PCRA court err in sua sponte changing the offense
of conviction by directing that the subsection which was
charged from the initiation of the case be amended, and
treating the same as a clerical error?
Brown’s Brief at 4 (excess capitalization omitted).
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).
Brown’s first three issues allege the ineffectiveness of plea and appellate
counsel.2 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
____________________________________________
2 Although, as phrased, Brown’s third issue does not challenge plea counsel’s
ineffectiveness, it is clear from the supporting argument that this issue
addresses another claim regarding plea counsel’s advice to enter a guilty plea.
See infra.
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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) counsel’s
act or omission prejudiced the petitioner. Id. at 533.
Regarding claims of ineffectiveness in relation to the entry of plea, we
further note:
Ineffective assistance of counsel claims arising from the
plea bargaining-process are eligible for PCRA review.
Allegations of ineffectiveness in connection with the entry of
a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter into an
involuntary or unknowing plea. Where the defendant enters
his plea on the advice of counsel, the voluntariness of the
plea depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal
cases.
The standard for post-sentence withdraw of guilty pleas
dovetails with the arguable merit/prejudice requirements
for relief based on a claim of ineffective assistance of plea
counsel, . . . under which the defendant must show that
counsel’s deficient stewardship resulted in a manifest
injustice, for example, by facilitating the entry of an
unknowing, involuntary, or unintelligent plea. This standard
is equivalent to the “manifest injustice” standard applicable
to all post-sentence motions to withdraw a guilty plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations omitted).
Moreover, “[o]ur law presumes that a defendant who enters a guilty
plea was aware of what he was doing,” and “[h]e bears the burden of proving
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otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citations omitted).
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting that
he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is bound
by the statements he makes in open court while under oath
and may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.
Id. On appeal, this Court evaluates the adequacy of the plea colloquy and
the voluntariness of the resulting plea by looking at the totality of the
circumstances. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.
Super. 2011).
In his first and second issues, Brown asserts that plea counsel was
ineffective because he “did not investigate [Brown’s] case, advised him to
enter a plea of guilty to a charge that was not viable, and advised him that
the deadly weapon enhancement would not apply.” Brown’s Brief at 11. In
his third issue, Brown claims that plea counsel was ineffective for advising him
to plead guilty to arson endangering others “as no individuals were
endangered as a result of [Brown] burning up some clothing in a trash can.”
Id. at 19 (emphasis omitted). We address each claim separately.
In his first issue, Brown asserts that plea counsel was ineffective for
advising him to enter a plea of guilty to attempted manslaughter of a law
enforcement officer. Brown claims that this was a “non-viable charge,”
because it required him to possess “the specific intent to kill the Troopers
negligently or accidently.” Id. at 11. According to Brown, “[t]he criminal
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attempt, which requires a specific intent, was not viable under the facts and
circumstances of the case.” Id.
The PCRA court found no merit to this claim because the crime to which
Brown pled guilty is a viable charge in Pennsylvania. The court first recognized
the parameters of Brown’s claim:
[Brown’s] argument is based on the interplay between 18
Pa.C.S. § 901, which establishes the mens rea necessary to
find a defendant guilty of attempting to commit an offense,
and the elements of the offense of Manslaughter of a Law
Enforcement Officer in the First Degree set forth in 18
Pa.C.S. § 2507(c). However, his argument ultimately fails,
as it ignores both controlling caselaw and basic tenets of
statutory interpretation.
PCRA Court Opinion, 1/22/21, at 25-26.
The PCRA court then recognized that criminal attempt requires specific
intent and that its application is limited to crimes which also require a specific
intent:
Under § 901(a), “[a] person commits an attempt when,
with intent to commit a specific crime, he does any act
which constitutes a substantial step toward the commission
of that crime.” (Emphasis added). This necessarily limits
liability for criminal attempt to those offense requiring a
mens rea of specific intent, because a person cannot
intentionally commit an unintentional offense (such as one
requiring a mens rea of recklessness or gross negligence).
See Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.
Super. 2004) (attempted second and third degree murder
are not viable offenses under Pennsylvania law, as such
offenses only occur where the victim’s death is the
unintentional result of a criminal act; § 901 requires that
the Commonwealth prove the defendant had the specific
intent to kill the victim) ([citations omitted)].
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Id. at 26.
The court noted the elements of the underlying offense, which is part of
a criminal statute that provides varying degrees of crimes for the criminal
homicide of a law enforcement officer, including murder and manslaughter.
That statute reads, in pertinent part, as follows:
§ 2507. Criminal homicide of law enforcement officer
***
(c) Manslaughter of a law enforcement officer in the
first degree.—A person commits a felony in the first degree
who does any of the following:
(1) Without lawful justification kills a law enforcement
officer while in the performance of duty and with knowledge
that the victim was a law enforcement officer, if at the time
of the killing:
(i) the person is acting under a sudden and intense
passion resulting from serious provocation by the victim
killed; or
(ii) the person is acting under a sudden and intense
passion resulting from serious provocation by another
individual whom the actor endeavors to kill, but the person
negligently or accidentally causes the death of the victim.
***
18 Pa.C.S.A. § 2507(c).
The PCRA court then provided the following analysis of Brown’s claim:
The criminal information charged [Brown] with, and he
ultimately pleaded guilty to and was sentenced for,
committing the offense under § 2507(c)(1)(ii). [PCRA]
counsel now looks to the “negligently or accidentally causes
the death of the victim” portion of this subsection to argue
that Manslaughter of a Law Enforcement Officer in the First
Degree is not a specific intent offense, and that therefore
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[Brown’s] sentence for attempting to commit this offense is
illegal. To say that such an interpretation of § 2507(c)(1)(ii)
is incorrect does not even begin to encompass the
magnitude of its erroneousness.
[Brown’s] argument plucks one phrase from § 2507(c)
and attempts to use it to negate the entirety of the
remainder of the statute. This cannot be done. Words of a
statute must be interpreted in context, they cannot be
viewed in isolation.
Looking at the larger context, § 2507, titled “Criminal
Homicide of Law Enforcement Officer,” was enacted in 2008.
Subsections (a) and (b) address murder of a law
enforcement officer, and [subsections] (c) and (d) address
manslaughter. With respect to manslaughter, it is clear that
the General Assembly intended subsection (c) to address
situations in which the offense otherwise would be Voluntary
Manslaughter under 18 Pa.C.S. § 2503, and subsection (d)
to address situations in which the offense would otherwise
be Involuntary Manslaughter under 18 Pa.C.S. § 2504. Both
of these statutes were in effect well before 2008, and the
only differences between the elements of the offenses set
forth in § 2507(c) and (d) and the elements of the offenses
set forth in §§ 2503 and 2504 are that in each instance, the
defendant killed “a law enforcement officer in the
performance of duty” and knew at the time the victim was
a law enforcement officer.
PCRA Court Opinion, 1/22/21, at 27-28 (citations and footnotes omitted).
Ultimately, the PCRA court explained why Brown’s claim lacked merit:
With the understanding that Manslaughter of a Law
Enforcement Officer in the First Degree is essentially
Voluntary Manslaughter, but with a law enforcement officer
as the victim, it is relatively easy to dispense of [Brown’s]
claim. It has been clear that Attempted Voluntary
Manslaughter is a viable offense under the laws of the
Commonwealth since at least 1983. See Commonwealth
v. Garner, 461 A.2d 302, 303-304 (Pa. Super. 1983)
(affirming the trial court’s finding that Attempted Voluntary
Manslaughter exists as an offense in the Commonwealth,
since Voluntary Manslaughter “is an intentional killing, but
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without the malice required to raise the degree of culpability
to that of murder.”; see also Commonwealth v. Burns,
765 A.2d 1144, 1151 (Pa. Super. 2000) (upholding the
defendant’s conviction and aggravated range sentence for
Attempted Voluntary Manslaughter under 18 Pa.C.S. §§
901(a), 2503(a)(1)).
What [Brown’s] focus on the “negligently or accidentally”
portion of § 2507(c)(1)(ii) ignores is that this subsection
addresses transferred intent situations. The classic
transferred intent example is that A intends to shoot B, but
misses, and hits and kills C instead. The level of intent A
possessed with respect to attempting to shoot B is
transferred to the killing of C, so if A fired his shot intending
to kill B under circumstances that would constitute voluntary
manslaughter, he is guilty of voluntary manslaughter in
regard to his killing of C. This is where the “negligently or
accidentally” language comes into play, because A always
intend to commit voluntary manslaughter, he simply killed
the wrong individual. Had A’s intent in killing C had been
anything other than negligence or accident, there would be
no need for transferred intent, because by definition, he
would have fired his shot intending to kill C in the first place.
This is thus a very different situation than if the
Commonwealth had charged [Brown] with Attempted
Manslaughter of a Law Enforcement Officer in the Second
Degree, which likely does not constitute a viable offense.
Id. at 29-30 (footnotes omitted).3
Our review of the record and pertinent case law supports the PCRA
court’s conclusion. See, e.g., Commonwealth v. Tolbert, 670 A.2d 1172,
1179-80 (Pa. Super. 1995) (defining voluntary manslaughter as the
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3 This crime mirrors the crime of involuntary manslaughter: “A person
commits a felony of the second degree who, as a direct result of the doing of
an unlawful or lawful act in a reckless or grossly negligent manner, causes the
death of a law enforcement officer while in the performance of duty and the
person knew or should have known the victim was a law enforcement officer.
18 Pa.C.S.A. § 2507(d).
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intentional killing of another without malice but in sudden heat of passion
brought on by legal provocation).
Brown’s claims to the contrary are unavailing. He first maintains the
same argument regarding the non-viability of the offense that the PCRA court
debunks. See Brown’s Brief at 17-18. Moreover, Brown’s answers during the
guilty plea colloquy refute his claims that he was not “instructed to the mens
rea of the offense to which he entered a plea of guilty,” and that “neither
[plea] counsel nor the [trial] court adequately explained the definition of the
offense” to him. Brown’s Brief at 18.4 Pollard, supra. Finally, because the
offense to which he pled guilty is viable, his illegal sentence claim fails.
In his second issue, Brown challenges plea counsel’s failure to
investigate the incident fully by interviewing his brother, Dustin. To establish
that trial counsel was ineffective for failing to investigate and/or call a witness
at trial, a PCRA petitioner must demonstrate that:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the witness
was prepared to cooperate and would have testified on
appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
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4 Although Brown mentions plea counsel’s alleged failure to advise him that
the deadly weapon enhancement would be applied, he provides no further
argument. We do note that the PCRA court did not find his PCRA hearing
testimony regarding this issue to be credible. See PCRA Court Opinion,
1/22/21, at 25. Brown does reprise this claim as part of his sentencing
argument. See Brown’s Brief at 26.
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Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted). Brown asserts that Dustin “was an available witness who had
valuable testimony to provide,” which would have corroborated his version of
the incident. Brown’s Brief at 11. Brown further contends that Dustin was an
“available and reluctantly willing witness, but no one spoke to him about the
case until the PCRA proceedings were pending.” Id.The PCRA court found that Brown’s claim had arguable merit because
plea counsel admitted that he knew Dustin was present on the night of the
incident but did not hire an investigator or otherwise interview him.
Nevertheless, the court found that plea counsel had a reasonable basis for not
doing so:
[Plea counsel] had a reasonable strategic basis for
proceeding in the manner he did. His focus during the
entirety of the matter was to negotiate a plea agreement
that would, as he put it, give [Brown] a chance of paroling
out of prison while he was still young enough to have a life,
rather than serving a de facto life sentence. [Plea counsel]
knew [the trial court] well, knew the District Attorney well,
knew Huntingdon County juries well, and knew the primary
victim and witness for the Commonwealth—Trooper Harris—
well. This gave [plea counsel] a well-informed opinion of
[Brown’s] chances if the charges went to trial, and the
sentences he would likely receive if convicted. He chose,
after consultation with [Brown], to focus on obtaining the
best plea deal possible. Had [plea counsel hired] an
investigator and begun digging, he would have risked the
momentum he had built toward such a deal. Further,
knowing Trooper Harris (and other troopers involved in the
matter) and his reputation for truthfulness and credibility on
the witness stand, it would have been obtuse of him to
believe that [Dustin] would have testimony or evidence that
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would both contradict the totality of the evidence presented
by the Commonwealth and be wholly believed by a jury.
Even if [Dustin] had believable testimony that contradicted
only the evidence regarding [Brown’s] “Fuck you pigs!” and
“Go away State Police!” statements, the evidence for the
remaining charges was strong enough that [Brown] almost
assuredly be convicted and receive a sentence longer than
what was negotiated under the plea deal. As for the final
prong [of the ineffectiveness test], had [plea counsel]
interviewed [Dustin] and obtained testimony from him, it
would not have altered the outcome for [Brown]. The best
course would still have been to negotiate a plea deal, as
opposed to going to trial, and the District Attorney would
not have changed his position based on the contradictory
testimony of a single, interested witness.
PCRA Court Opinion, 1/22/21, at 47-48.
Our review of the record supports the PCRA court’s conclusions.
Initially, we note that Dustin’s availability was not established unequivocally.
See id. at 21 (factual finding by the PCRA court that Dustin “did not contact
anyone involved in the case . . . because he was under the impression that he
‘had to be subpoenaed’”). Nevertheless, plea counsel’s decision to pursue a
plea deal was a reasonable strategy, given that counsel was able to obtain the
withdrawal of thirteen additional charges, including four first-degree felonies.
Brown’s claim that even when pursuing a plea, counsel should have
interviewed Dustin because “favorable defense evidence can assist in
obtaining a favorable plea or in strengthening the defense negotiation
position,” amounts to no more than speculation. Brown’s Brief at 32. Finally,
considering the totality of the Commonwealth’s evidence against Brown, we
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concur with the PCRA court’s determination that Brown could not establish
prejudice.
In his third issue, Brown asserts that plea counsel was ineffective for
advising him to enter a guilty plea to arson when the factual basis provided
for this plea was insufficient. According to Brown, the factual basis for this
charge was insufficient because it “did not establish that anyone was
endangered as a result of the fire.” Brown’s Brief at 20.
With regard to the procedure followed regarding the entry of a guilty
plea, this Court has stated:
Pennsylvania has constructed its guilty plea procedures
in a way designed to guarantee assurance that guilty pleas
are voluntarily and understandingly tendered. The entry of
a guilty plea is a protracted and comprehensive proceeding
wherein the court is obliged to make a specific
determination after extensive colloquy on the record that a
plea is voluntarily and understandingly entered.
Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)
(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super.
1993)).
Rule 590(A)(1) of the Pennsylvania Rules of Criminal Procedure requires
that a guilty plea be taken in open court. As noted in the Comment to Rule
590, at a minimum the trial court should ask questions to elicit the following
information:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
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(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the
right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the
judge accepts such agreement?
(7) Does the defendant understand that the
Commonwealth has a right to have a jury decide the
degree of guilt if the defendant pleads guilty to murder
generally?
Pa.R.Crim.P. 590, Comment.
As noted above, this Court evaluates the adequacy of the plea colloquy
and the voluntariness of the resulting plea by looking at the totality of the
circumstances. Yeomans, 24 A.3d at 1047 (citation omitted). “Thus, even
though there is an omission or defect in the guilty plea colloquy, a plea of
guilty will not be deemed invalid if the circumstances surrounding the plea
disclose that the defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and voluntarily decided to
enter the plea.” Id. Under Pennsylvania law, a reviewing court is free to
consider a wide array of relevant evidence in addition to the transcript of the
actual plea colloquy, under the totality-of-the-circumstances standard, to
determine the validity of a claim and plea agreement, including, but not
limited to transcripts from other proceedings, off-the-record communications
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with counsel, and written plea agreements. Commonwealth v. Allen, 732
A.2d 582, 589 (Pa. 1999).
The PCRA court found no merit to this claim:
Simple review of the record and applicable statute
reveals the absurdity of this argument.
***
The initial victims of [Brown’s] arson were Troopers
Harris and Howell, who arrived on scene not knowing
whether Ms. Labus or her children were in the trailer. They
then had to endure an armed standoff with [Brown] that
required them to balance their own safety, their desire to
end the standoff without harming [Brown], and the need to
make sure that anyone inside of the trailer was safe, all
while the remaining time for which conditions in the trailer
would remain survivable shrank toward zero (and all while
standing just outside a burning structure). It was only due
to the fortunate arrival of [Dustin] that the troopers were
able to discern that no one else was in the trailer, thus
avoiding the need to search it.
The next victims of [Brown’s] arson were the Wises.
Having already taken shelter in their basement due to the
gunfire, they were then forced to evacuate outside because
of the danger of the fire at [Brown’s] trailer spreading to
their house, given the close proximity of the structures.
Finally, while the general risk inherent for firefighters
responding to fight fires is likely not sufficient for a
conviction under [the arson statute], [Brown’s] argument
that no firefighters were endangered because none of them
had to enter the trailer to extinguish the fire is both glib and
self-serving. Given the speed at which the fire spread and
the delay in the fire department’s response caused by
[Brown’s] armed standoff with the troopers, the trailer was
fully involved even before the fire department was called.
Upon arrival the firefighters were forced to take a defensive
posture, protecting neighboring exposures such as the
Wises’ house to prevent the fire from spreading.
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PCRA Court Opinion, 1/22/21, at 37-38.
Our review of the record supports the PCRA court’s conclusions. As
noted above, the Commonwealth relied upon the affidavit of probable cause
as providing the factual basis for the plea. In making his argument, Brown
focuses on his admission provided in the affidavit that he “lit a fire in the
residence using a butane lighter and set a pair of sweatpants on fire near the
bedroom.” See Brown’s Brief at 20. He then argues that this factual basis
did not establish that anyone was endangered because of the fire. Id.Although the use of the affidavit of probable cause did not provide all
the details regarding the entire incident, the factual basis provided was
sufficient notice of the crime to which Brown was pleading. Brown’s argument
to the contrary ignores the totality of the circumstances surrounding his guilty
plea. Yeomans, supra. Indeed, he acknowledges that the “fire spread” and
the record establishes that the trailer was fully engulfed by the time the fire
department arrived. In his brief, Brown cites Commonwealth v. McCoy,
199 A.3d 411 (Pa. Super. 2018), to argue that he was the only person in the
“orbit of danger” because he “was the only person within the trailer who was
at risk of bodily injury or death.” Brown’s Brief at 20-21. Brown’s reliance
upon McCoy is misplaced, as that case did not involve circumstances similar
to this case or even the arson statute. Brown’s third issue fails.
In his fourth issue, Brown asserts that the PCRA court erred in finding
that his ineffective assistance claims did not merit relief by holding that he
was not prejudiced by any of his prior counsel’s errors. We have already
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rejected Brown’s claims involving plea counsel.5 Regarding appellate counsel,
Brown’s argument involves the effectiveness of counsel’s challenge to the
discretionary aspects of his sentence on direct appeal. As phrased, Brown’s
fifth and sixth issues are direct challenges to the trial court’s sentencing
discretion, which are not cognizable under the PCRA. See generally,
Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007). Because his
supporting argument on these two issues essentially assert that appellate
counsel was ineffective for failing to raise these specific sentencing claims on
appeal, we will consider these three issues together.
In arguing these issues, Brown failed to show actual prejudice as
required by our precedent. In Commonwealth v. Reaves, 923 A.2d 1119(Pa. 2007), our Supreme Court addressed whether a PCRA petitioner, whose
counsel failed to file a motion to reconsider sentence suffered prejudice.
There, the Superior Court had summarily concluded that prejudice was
presumed because counsel’s inaction effectively waived Reaves’ right to
challenge this issue on appeal.
____________________________________________
5As part of this issue, Brown raises additional alleged shortcomings regarding
plea counsel’s representations to him during the plea colloquy. See Brown’s
Brief at 34-35. After review, we conclude these claims are either refuted by
Brown’s answers during the plea colloquy, Pollard, supra, or inconsequential
when considering the totality of the circumstances surrounding Brown’s plea.
Yeomans, supra. This is especially true, considering the PCRA court’s
conclusion that plea and appellate counsel provided credible testimony, but
Brown’s PCRA hearing testimony was unworthy of belief. See PCRA Court
Opinion, 1/22/21, at 23-25.
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Our Supreme Court disagreed. Instead, the High Court held that a PCRA
petitioner raising a claim of ineffectiveness regarding counsel’s failure to file
a motion for reconsideration must establish actual prejudice. See Reaves,
923 A.2d at 1130. Specifically, the Court held that a PCRA petitioner must
show that, if counsel had taken a certain action, it would have led to a more
favorable sentence:
The Commonwealth argues that the Superior Court’s
prejudice analysis misses the mark because the panel
improperly focused on the effect of counsel’s inaction upon
the [appeal], rather than looking to the outcome of the
underlying [proceeding] itself. The Commonwealth is
correct. Although contemporaneous objections operate to
preserve issues for appellate review, they serve an equally
important function in obviating appeals by affording the
trial court a timely opportunity to correct mistakes and/or
to reconsider decisions. Whether [counsel] can be deemed
ineffective, then, depends upon whether [a defendant] has
proven that a motion to reconsider sentence if filed . . .
would have led to a different and more favorable outcome
at [sentencing]. In this context, the only way the
proceeding would have been more favorable would be if
counsel’s objection secured a reduction in the sentence. The
Superior Court panel erred as a matter of law in failing to
appreciate the actual focus of the [actual] prejudice
standard.
Reaves, 923 A.2d at 1131-32 (emphasis in original; footnote omitted). Our
Supreme Court further concluded that the PCRA petitioner did not establish
actual prejudice, since “[on] this record, there is no reason to believe that, if
only counsel had asked for a statement of reasons for the sentence at the
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[time of sentencing] that statement or explanation alone would have led the
court to reduce the sentence”). Id. at 1132.6
Here, the PCRA court, who was also the sentencing court, considered
the alternative discretionary issues appellate counsel failed to raise on appeal,
i.e., Brown’s fifth and sixth issues, and determined that none of them would
have led it impose a reduced sentence. See PCRA Court Opinion, 1/22/21, at
38-43. The court further opined that “because of the severity of the
aggravating factors present and the need for the protection of the public, [the
trial court] determined that a sentence consistent with the cap agreed to
between [Brown] and the Commonwealth was appropriate.” Id. at 41. Thus,
Brown cannot establish actual prejudice and his fourth, fifth and sixth issues
provide no basis for relief.
In his final issue, Brown asserts that the PCRA court erred in treating
the fact that he pled guilty to the wrong subsection of Section 2507 as a
clerical error and correcting the information sua sponte.
In rejecting this claim, the PCRA court found that the subsection of
manslaughter of a law enforcement officer, § 2507(c)(1)(ii), that was listed in
the information and to which Brown pled guilty, involved the doctrine of
____________________________________________
6 Although Reaves involved his counsel’s failure to file a motion for
reconsideration and Brown claims his counsel failed to raise certain arguments
in his discretionary challenge, both circumstances involve counsel’s failure to
preserve a sentencing claim. Therefore, under Reaves, Brown must establish
actual prejudice.
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transferred intent. The PCRA court later determined that this subsection of
the statute:
[did] not match with the facts alleged by the Commonwealth
and accepted as true by the [trial court] as part of [Brown’s]
guilty plea (nor with the testimony at the PCRA hearings).
Per those facts, [Brown] fired his two shots directly at
Troopers Harris and Howell, intending to kill them. This
brings the facts of this instant case firmly within the ambit
of § 2507(c)(1)(i), which addresses situations in which an
actor, under provocation sufficient to reduce the offense to
voluntary manslaughter, kills a law enforcement officer in
the performance of duty knowing that the victim is a law
enforcement officer.
PCRA Court Opinion, 1/22/21, at 31-32.
The PCRA court then noted that, had this issue been caught earlier, the
Commonwealth could have moved to amend the information pursuant to
Pa.R.Crim.P. 564, and, even had the case gone to trial and the finder of fact
found Brown guilty of subsection 2507(c)(1)(i), the fact that the criminal
information charged a different subsection of the crime would not have
rendered the conviction invalid. See id. (citing Commonwealth v. Jones,
912 A.2d 268 (Pa. 2006); see also Commonwealth v. Mentzer, 18 A.3d
1200, 1205 (holding a criminal information may be amended after verdict but
before sentencing when the specified crime in the original information involves
the same basic elements and evolved out of the same factual situation as the
crime specified in the amended information).
Here, the PCRA court recognized that “[t]he difficulty in the instant case
is that the incorrect statutory citation [was] carried through the entirety of the
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matter.” PCRA Court Opinion, 1/22/21, at 34. The PCRA court cited decisions
from our sister states to determine the way courts have corrected errors in
the record discovered after conviction and sentencing. See PCRA Court
Opinion, 1/22/21, at 35-36, and found a Kansas statute harmonious with
Pennsylvania case law that permits the courts of this Commonwealth to
exercise their “inherent power to correct errors in [their] records or orders so
they speak ‘the truth’ and thereby reflect what actually took place in [the]
judicial proceedings.” Id. at 36 (citing Commonwealth v. Borrin, 80 A.3d
1219, 1227 (Pa. 2013). The court thus concluded that the “correct approach”
was “to treat the citation to § 2507(c)(1)(ii) as a clerical error. The record
[should] thus be corrected to reflect that [Brown] was convicted, via guilty
plea, of violating § 2507(c)(1)(i).” PCRA Court Opinion, 1/22/21, at 37.
According to Brown:
The court erred in sua sponte changing the subsection of
the conviction. The mens rea of the charge involves specific
intent to kill a police officer and also requires serious
provocation either by the victim or another whom the
defendant intends to kill. In reviewing the charge and the
conviction, the [PCRA court] found that the charge for which
[Brown] was charged and entered a guilty plea should be
changed to another section without notice or colloquy. This
cannot be seen as a merely clerical correction. Changing
the alleged offense to indicate that an intent to kill was a
result of serious provocation by law enforcement changes
the factual basis for the plea in a significant manner,
particularly where [Brown] denied awareness of the
presence of the police.
Brown’s Brief at 12. Without citation to authority or even discussion, Brown
asserts that the variance between the facts and the crime charged renders his
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sentence illegal. Brown’s Brief at 14. We can address an illegal sentencing
claim sua sponte. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.
2013). As noted below, Brown’s sentence was not illegal.
In his brief, Brown also does not develop his bare assertion that he had
no notice of the correct subsection—that the Commonwealth identified the
victim as Trooper Harris; rather, he now claims there was insufficient
provocation by the trooper to sustain the Section 2507(c)(1)(i) charge. See
Brown’s Brief at 16-17.7 Because this claim is being raised for the first time
on appeal, however, it is waived. See generally, Pa.R.A.P. 302.8
Regarding Brown’s claim that the PCRA court cannot fix a clerical error,
we turn to our precedent on this issue. In Commonwealth v. Young, 695
A.2d 414 (Pa. Super. 1997), the defendant was charged with two counts of
indecent assault: Section Pa.C.S.A. 3126(a)(1) (lack of consent- Count 2)
and Section 3126(a)(4) (substantially impaired victim-Count 3). “The facts
elicited throughout the proceedings below were consistent with a prosecution
for indecent assault as defined by Count 2 of the indictment, and [the
defendant] knowingly and voluntarily admitted to acts which violated Count 2
of the indictment.” Young, 695 A.2d at 419. However, “the [trial] court, the
prosecution and defense counsel committed, in essence, a clerical error by
____________________________________________
7Brown further misidentifies the crime to which he pled guilty as involuntary
manslaughter of a law enforcement officer. See 18 Pa. C.S.A. § 2507(d).
8We further note that “serious provocation” is required for both subsections
of 2507(c).
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permitting [the defendant] to plead guilty to the wrong sub-section of the
indecent assault statute.” Id. The defendant ultimately filed a PCRA petition
resulting in the PCRA court’s allowing him to withdraw his guilty plea.
The Commonwealth appealed, and this Court reversed the award of
post-conviction relief. We explained as follows:
We do not believe that such an error is tantamount to
manifest injustice. [The defendant] was charged in Count 2
with violating [Section] 3126(a)(1), and he voluntarily
admitted to facts which constituted that charge. The fact
that judgment of sentence indicates that [the defendant]
pleaded guilty and was sentenced on Count 3, [Section]
3126(a)(4), does not affect the voluntariness of [the
defendant’s] plea where there was no confusion as to his
commission of Count 2. [The defendant] intended to plead
guilty to indecent assault as defined by [Section]
3126(a)(1), and we will not permit him to withdraw his plea
simply because the trial court, his counsel and the
prosecution failed to insure that [the defendant] pleaded
guilty to the correct count of the indictment.
Presently, the PCRA court should have corrected the
clerical error of counsel and the trial court which permitted
the judgment of sentence to indicate that [the defendant]
had been sentenced on indecent assault as defined by Count
3, rather than by Count 2. The power to modify a judgment
of sentence to amend records, to correct mistakes of court
officers or counsel’s inadvertencies is inherent in our court
system, even after the thirty-day time limit set forth in 42
Pa.C.S.A. § 5505, has expired. Thus, we will herein correct
the clerical error which appears on the face of the judgment
of sentence by setting forth the correct sub-section of the
indecent assault statute, i.e., substituting Count 2 of the
indictment for Count 3.
Young, 695 A.2d at 419-20 (footnotes and citations omitted).
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Here, s in Young, we conclude that the erroneous reference to Section
2507(c)(ii) as opposed to Section 2507(c)(i) does not invalidate Brown’s guilty
plea. Brown pled guilty to attempted voluntary manslaughter of Trooper
Harris. Moreover, the factual basis for the plea, which Brown acknowledged,
encompassed the correct subsection. As the PCRA court noted:
What is clear, however, is that everyone involved in the
case, from the troopers and the District Attorney’s Office to
[plea counsel], [the trial court], and [Brown] himself,
understood the allegation to be that [Brown] had directly
fired at Troopers Harris and Howell, and that the basis of
the charge was that in doing so, [Brown] had intended to
kill Trooper Harris.
Id. at 32 (footnote omitted). We find ample support for this conclusion in our
review of the certified record. See Jones, 912 A.2d 268, 289 (Pa. 2006)
(holding that, when properly read in a common sense manner, first-degree
murder indictment gave defendant adequate notice of the charges against
him, although the criminal information did not specify the specific intent
elements as to the unintended victim of shooting). Thus, we concur with the
PCRA court’s directive to correct the record. See supra.
In sum, Brown has failed to meet his burden regarding his
ineffectiveness claims of both plea and appellate counsel. In addition, the
PCRA court did not err in directing amendment of the record. Brown is not
entitled to any post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/16/2022
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