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[U] Commonwealth v. Brunson

Superior Court of Pennsylvania

February 7, 2014



Appeal from the PCRA Order entered January 11, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0004277-2007.




Deshawn Brunson ("Appellant") appeals from the order denying his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm.

This Court previously summarized the factual background as follows:

In the afternoon of February 3, 2007, [the victim], whose date of birth is October 12, 1992, was at home at 3315 N. Lee Street in Philadelphia babysitting her younger sisters. [The victim] was in her bedroom with her youngest sister when [Appellant], her mother's boyfriend, entered the room and stood by the side of her bed. Appellant told [the victim] that he would give her $60.00 every time he got paid if she would let him touch her. Although [the victim] said no, [Appellant] proceeded to touch the child on her vagina outside her clothes. When [Appellant] then tried to reach under her shirt, [the victim] smacked his hand away. [The victim] told [Appellant] to leave, but he stayed by the door.
When [the victim] was unable to reach her mother by phone, she called her cousin's residence and spoke with her aunt. [The victim's] aunt called the police and told [the victim] to stay on the phone with her until [the victim's] mother came home. When police arrived at approximately 4:00 p.m., they were told by [the victim's] mother that [Appellant] had left the premises. Police were at the residence about twenty minutes before they discovered [Appellant] crouched down hiding behind a washer in a rear kitchen shed. There was no way for [Appellant] to exit the shed because the rear door was nailed shut. Although [Appellant] took the stand and denied the charges, he acknowledged a conviction on similar charges in 2001 for offering a minor female $10.00 to lick her "coochy".

Commonwealth v. Brunson, 986 A.2d 1249 (Pa.Super. 2009), unpublished memorandum at 1-2.

Following a bench trial on January 16, 2008, Appellant was convicted of unlawful contact with a minor and related charges. On June 24, 2008, the trial court sentenced Appellant to an aggregate term of two and one-half to five years of imprisonment and a ten-year consecutive probationary term. After the denial of post-sentence motions, Appellant filed a timely appeal to this Court. On September 22, 2009, we rejected Appellant's sufficiency challenge and affirmed his judgment of sentence. Brunson, supra. On July 21, 2010, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Brunson, 998 A.2d 958 (Pa. 2009).

On August 4, 2010, Appellant filed a timely pro se PCRA petition, and a supplement to his petition on December 30, 2010. PCRA counsel was appointed, and PCRA counsel filed an amended petition on May 16, 2012. The Commonwealth filed its response on August 30, 2012. On November 16, 2012, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Appellant did not file a response. By order entered January 11, 2013, the PCRA court dismissed Appellant's amended PCRA petition. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925. Appellant raises the following issue:

A. Whether the [PCRA] court erred [by] dismissing the [PCRA] petition where trial counsel was ineffective for failing to present the essential witness, Gregory Brunson, who would have contradicted the testimony of the [victim] at trial?

Appellant's Brief at 5 (capitalization removed).

In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001). Before an evidentiary hearing will be granted, a PCRA petitioner "must set forth an offer to prove at an appropriate hearing sufficient facts upon which a ...

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