February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
DESHAWN BRUNSON, Appellant
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.
BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.
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Commonwealth v. Brunson, 986 A.2d 1249 (Pa.Super. 2009), unpublished memorandum at 1-2.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 reviewing court can conclude that trial counsel may have, in fact, been ineffective." Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)).
Furthermore, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.
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. Id. "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) 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. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant asserts that trial counsel was ineffective for failing to present the testimony of his brother, Gregory Brunson ("Brunson"), at trial. Appellant argues, "[s]ince the only eyewitness that was presented on behalf of the Commonwealth was [the victim] and the only witness [presented] by [trial] counsel was [Appellant], a third witness with a different perspective would have influenced the finder of fact and resulted in a different verdict." Id. at 11. Appellant avers that he told trial counsel of Brunson's availability and willingness to testify "as an alibi witness on his behalf, " but trial counsel "provided no rationale [sic] basis" for failing to present this witness." Appellant's Brief at 12-13. According to Appellant:
Brunson, who was in the next room at the time of the incident would have testified that he saw [Appellant] outside the room of the [victim] at the time of the incident. He did not see [Appellant] enter the room at any time. (See Affidavit). This testimony was significant and would have changed the outcome of the trial.
Id. at 13. Appellant concludes by stating that the PCRA court should have granted him an evidentiary hearing on his ineffectiveness claim.
In order to establish that trial counsel was ineffective for failing to investigate and/or call a witness at trial, a PCRA petitioner must demonstrate:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) [trial] counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied [the appellant] a fair trial.
Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).
Brunson's Affidavit, notarized on March 12, 2012 but otherwise undated, reads as follows:
My name is Gregory Brunson and I live at 304 Erial Road, Apartment 813 in Sicklerville, New Jersey 08081, I am thirty-nine (39) years old and was born on October 26, 1972. I am presently employed at the Williamstown Middle School located on Sicklerville Road, New Jersey as a custodian. On February 3, 2007, I was present in the residence at 3315 North Lee Street in Philadelphia, Pennsylvania, where supposedly a sexual assault took place. At approximately 1:30 p.m., I was laying in the bed in the upstairs back room of the residence and was woken up when I heard a female's voice yell, "leave me alone". At this time, I got out of the bed to see who was yelling and what was going on. At that time, I noticed my brother, [Appellant], cutting his hair in the upstairs bathroom. I asked [Appellant] if he heard someone scream and [Appellant] responded that he did not. At this time, the door to [the victim's] room was closed and [the victim] was inside her room. I then used the bathroom and laid back down on the bed in the back room. From this time until approximately 2:45 p.m., I was laying in the back bedroom, awake, while [Appellant] was in the bathroom cutting his hair and [the victim] was in her own room with the door closed. At approximately 2:45 p.m., I heard [the victim's] door open and I heard [the victim] go downstairs. At this time, I heard a loud commotion downstairs and I went down to see what was happening. As I walked down the stairs, I noticed [the victim] arguing with her mother, [L.J.], and at this time, [the victim] appeared to be acting normally. A few minutes after this argument began, [Appellant] came downstairs from the upstairs bathroom and I returned to the bed in the upstairs back room. Approximately fifteen (15) minutes later, I heard the police arrive at the residence and [Appellant] was arrested. At no time did I notice [Appellant] enter [the victim's] room. During the time of the trial I was available and willing to testify, however, I was never called as a witness or interviewed by [Appellant's trial counsel]. I have read this statement consisting of two (2) pages prepared on March 2, 2012 and find it to be true and correct.
Amended PCRA Petition, 5/16/12, (Attachment).
The PCRA court concluded that Appellant met his burden under Thomas, supra, except for the final factor, i.e., that the absence of Brunson's testimony was so prejudicial as to have denied Appellant a fair trial. The PCRA court reasoned:
[T]he failure to call Brunson was in no way prejudicial to the defense. In Brunson's affidavit accompanying [Appellant's] petition, Brunson states that he would have testified that he "heard a female's voice yell 'Leave me alone, '" and that he did not notice [Appellant] entering the [victim's] bedroom. In fact, his putative testimony circumstantially corroborates the fact that [the victim] pushed [Appellant's] hand away and told him to leave her room, as the female shout of "Leave me alone, " is consistent with [the victim's] account of the events. Furthermore, Brunson's statement that he did not notice [Appellant] going into the [victim's] room is not exculpatory. Brunson's failure to notice his brother does not establish that [Appellant] was not in the room. Finally, counsel had a reasonable basis for not calling Brunson to testify. Brunson suffered from serious credibility issues. Brunson lied to the police upon their arrival, claiming that [Appellant] had left the house, when, in fact, [Appellant] was hiding inside the house.
Accordingly, [Appellant's] claim is baseless as he failed to prove that he was prejudiced by the absence of Brunson's testimony. Therefore, this Court properly dismissed [Appellant's] PCRA petition without an evidentiary  hearing.
PCRA Court Opinion, 6/27/13, at 4 (citations omitted).
Our review of the record supports the PCRA court's conclusion that Appellant did not meet his burden with regard to trial counsel's failure to call Brunson at trial. Brunson's affidavit did not provide an alibi. Moreover, a reading of Appellant's bench trial transcript supports the trial court's conclusion that Brunson lied to the police about Appellant's whereabouts following the assault, and therefore, his credibility would have been a concern had he been called as a witness on Appellant's behalf. See N.T., 1/16/08, at 29; Commonwealth v. Stewart, 2013 Pa.Super. LEXIS 3196, *28 n.4 (Pa.Super. 2013) (en banc) (citation omitted) (reiterating that when evaluating a claim of ineffectiveness the predicate question "on a collateral attack requires a judicial assessment of credibility in evaluating prejudice").
In sum, because Appellant's claim of ineffectiveness is without merit, the PCRA court did not err in denying his PCRA petition without first holding an evidentiary hearing. Jordan, supra. We therefore affirm the PCRA court's order denying post-conviction relief.