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Brown v. Beard

April 13, 2010


The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge



Patrick Brown, an inmate presently confined at the State Correctional Institution at Mahanoy, Frackville, Pennsylvania, brought this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the validity of his state court conviction.*fn1 On February 11, 2009, Brown filed an Amended Petition. See Dkt. Entry # 6. Service of the Amended Petition was thereafter ordered. Respondent filed an appropriate response along with the pertinent state court records. Petitioner, who proceeds pro se, filed a traverse on April 1, 2009. The petition is ripe for review. For the reasons that follow, habeas corpus relief will be denied.


Following a 2002 jury trial in the Dauphin County Court of Common Pleas, Petitioner was convicted of burglary, robbery, illegal possession of a firearm, and criminal conspiracy. On November 14, 2002, Brown was sentenced to an aggregate prison term of twenty-two (22) to seventy (70) years.

Petitioner failed to file a timely direct appeal. However, on January 13, 2003, the trial court reinstated his appeal rights. On February 12, 2004, the Pennsylvania Superior Court affirmed Brown's conviction and sentence. Commonwealth v. Brown, 849 A.2d 601 (Pa. Super. 2004)(Table). Petitioner did not seek further review from the Pennsylvania Supreme Court.

On February 17, 2005, Petitioner initiated an action under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541, et seq.. After conducting an evidentiary hearing, the trial court denied Petitioner's request for relief by decision dated February 15, 2007. The trial court's denial of relief was affirmed by the Pennsylvania Superior Court on June 30, 2008. A petition for allowance of appeal was denied by Pennsylvania's Supreme Court on January 12, 2009. Brown initiated this federal habeas corpus proceeding on January 29, 2009. Respondent does not challenge the timeliness of the habeas petition, and concedes that Petitioner has satisfied the exhaustion of state court remedies requirement.


The following summary of the relevant facts underlying Brown's criminal charges was gleaned from the Superior Court's February 12, 2004 decision.*fn2 During the late afternoon of April 8, 2001, Joshua Kone and his friend Antwoyn Neal were in the living room of Kone's residence when two armed men entered the home. One of the intruders was armed with a semi-automatic assault rifle, and the other carried a sawed-off shotgun. The assailants, who wore bandanas which partially concealed their faces, demanded that Kone hand over money that was allegedly locked in a safe located somewhere in the residence.

The assailants proceeded to take Kone to the basement of the house. When Kone denied having any cash in the home, the assailant armed with the assault rifle struck Kone in the face him with the firearm. While raising his arms to prevent being struck again, Kone inadvertently pulled the bandana from Petitioner's face, revealing his identity.*fn3 Kone implored the assailant to stop, stating, "O.G., why are you robbing me? I]t doesn't have to happen like this." The assailant responded by again striking Kone with the assault rifle.

The intruders then proceeded to search for a safe in the basement. While they were preoccupied, Kone ran upstairs, retrieved a firearm from the living room and attempted to intercept the assailants as they fled through the back door. In their flight, the pair left behind a blue bandana and a hammer.

During the entire incident, Neal remained unguarded and undisturbed in the living room, but took no steps to aid Kone. Neal fled the residence when Kone emerged from the basement.

Weapons, a glove, and other materials used by the assailants were discovered in the house and surrounding area during an ensuing investigation. The police also retrieved the blue bandana and hammer left at the residence when the assailants fled.

Kone identified Petitioner Brown as the assailant who had been wearing the blue bandana and who had struck him with the rifle. A DNA analysis of material found in the blue bandana, however, excluded Brown as the contributor of the material. Moreover, fingerprint testing performed on the evidence recovered from the scene was inconclusive.

On direct appeal, Brown challenged the sufficiency of the evidence to support the convictions. He also asserted trial court error in not allowing redirect examination to rehabilitate a defense witness impeached with crimen falsi convictions and ineffective assistance of counsel in failing to object to the jury instructions.

The Superior Court rejected each of these contentions. As to the sufficiency of the evidence, the Superior Court concluded that Kone's identification of Brown was not rendered unreliable by the absence of confirming DNA or other forensic evidence placing Brown at the scene of the crime. In this regard, the appeals court noted the significance of the fact that Kone had met Brown on three or four occasions and knew him by his street name, "O.G." The appeals court also observed that Kone had testified that he initially believed Brown to be one of the assailants by his voice and distinctive cornrow hairstyle, and his belief was confirmed when Korn pulled down the bandana and exclaimed, "O.G. why are you robbing me?" The Superior Court concluded that Kone's unequivocal identification testimony was sufficient despite the absence of corroborating scientific evidence. As to the restrictions on redirect examination of Antwoyn Neal, called as a defense witness, the Superior Court held that the trial court did not err in refusing to allow Neal to be questioned about the circumstances surrounding his prior conviction for filing false reports to law enforcement authorities. The Superior Court explained that an explanation of the circumstances of the conviction would have no bearing on credibility as "[t]he conviction stands notwithstanding any alleged circumstances surrounding the offense." (Dkt. Entry # 16-4, at 12.) Finally, the Superior Court declined to address the ineffective assistance of counsel claim, explaining that it should first be raised in a PCRA proceeding where an appropriate record could be made.

Brown's ensuing PCRA motion included an ineffective assistance of counsel claim pertaining to the jury charge on the crime of robbery. Brown also asserted ineffective assistance of counsel for ...

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