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[U] Commonwealth v. McKant

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRIAN W. MCKANT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of December 4, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1300294-2006

BEFORE: GANTMAN, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Brian W. McKant, appeals from an order entered on December 4, 2012 in the Court of Common Pleas of Philadelphia County that denied his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We previously summarized the historical facts in this case in our memorandum disposing of Appellant's claims on direct appeal.

On January 9, 2006, Appellant and two friends, Jerrell Smith and Bryheem Baldwin, were playing a dice game in front of 1117 West Tioga Street, Philadelphia, Pennsylvania. Lamont Sparrow approached Appellant and his friends. Hostile words were exchanged between the men.[1] Sparrow then walked away from the other men towards a basketball hoop at the end of West Tioga Street.
Baldwin watched Appellant walk up behind Sparrow and pull a handgun from is right jacket pocket. Appellant then shot Sparrow twice in the back of the head. Appellant immediately fled the scene. Smith and Baldwin also left the scene and ran towards their residences.
When police arrived at the scene, Sparrow was lying face down in the street covered with a white sheet. Witnesses told police that they heard two "pops" coming from the direction of the basketball hoop and saw Appellant, Smith, and Baldwin run in different directions.
Several days after the shooting, Smith and Baldwin both were questioned separately regarding the shooting. Both men stated that Appellant shot Sparrow. The two men also appeared at the district attorney's office and provided signed statements, again implicating Appellant as the shooter. On April 4, 2006, after eluding police for several months, Appellant was arrested and charged with shooting Sparrow.
Prior to trial, Smith and Baldwin both decided not to testify against Appellant and failed to appear at a preliminary hearing. The trial court ordered the two men to appear. At a rescheduled preliminary hearing, Baldwin appeared and recanted the statement he made to police. He testified that he did not see who killed Sparrow but that he heard the shots and ran from the scene.
A jury trial was held on August 2, 2007. Smith and Baldwin both testified and again tried to recant their pretrial statements. Appellant was convicted of first-degree murder, possession of an instrument of crime, and firearms not to be carried without a license.[2] That same day, Appellant was sentenced to life imprisonment without the possibility of parole for the murder offense and two and one-half to five years' imprisonment for possession of an instrument of crime, to be served concurrently. Appellant filed a post-sentence motion, which was denied. [Thereafter, Appellant lodged a timely notice of direct appeal and, on March 6, 2009, we affirmed Appellant's judgment of sentence. Commonwealth v. McKant, 972 A.2d 557 (Pa. Super. 2009) (unpublished memorandum). The Supreme Court denied Appellant's petition for allowance of appeal on November 5, 2009. Commonwealth v. McKant, 983 A.2d 727 (Pa. 2009).]

Commonwealth v. McKant, 972 A.2d 557 (Pa. Super. 2009) (unpublished memorandum) at 1-3 (original footnotes modified).

On August 23, 2010, Appellant, acting pro se, filed the instant petition pursuant to the PCRA. Counsel was appointed to represent Appellant in connection with his claims for collateral relief. On July 30, 2012, PCRA counsel moved to withdraw as Appellant's representative and filed a no- merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On August 3, 2012, the PCRA court forwarded Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing. Appellant responded to the notice on August 9, 2012. On August 20, 2012, PCRA counsel filed a supplemental no-merit letter that addressed Appellant's additional claims. On November 1, 2012, the PCRA forwarded Appellant a second notice pursuant to Pa.R.Crim.P. 907 advising that his PCRA petition would be dismissed without a hearing. Appellant responded to this Rule 907 notice on November 19, 2012. The PCRA court dismissed Appellant's petition on December 4, 2012 and granted counsel leave to withdraw. This appeal timely followed on December 26, 2012.[3]

Appellant raises the following claims for our review:

Did the district attorney commit a Brady[4] violation when he failed to give the defense evidence concerning Doris Harmon and an anonymous tipster indicating that someone named "Jerrel" had shot the victim?
[Were] Appellant's constitutional rights violated when police illegally took mail in [the] absence of a warrant?
Was trial counsel ineffective for failing to object, raise and preserve for appeal purposes the issue that the trial court erred in permitting the jury to review letters written by a witness during deliberations?
Was trial counsel ineffective for failing to object, raise and preserve for appeal purposes the issue that the trial court erred in permitting the introduction of evidence concerning prior shootings?
Was [trial] counsel ineffective for failing to impeach witness Bryheem Baldwin where he was on probation when he testified?
Was PCRA counsel ineffective for failing to interview and investigate witness David Jones, Bryheem Baldwin and Jerrel Smith, all of whom [were prepared] to testify to [] Appellant's innocence?
Is Appellant's mandatory life sentence unconstitutional where he was 19 years old at the time of the alleged crime?
Did the [trial] court commit and error of law when it dismissed Appellant's PCRA petition?

Appellant's Brief at 6 (order of issues presented revised to facilitate discussion).

Appellant challenges an order denying his petition for collateral relief.

Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.
Under Pennsylvania Rule of Criminal Procedure [907(1)], the PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. [907(1)]. To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
In order to be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2) (setting forth the eligibility requirements of the PCRA). Further, Appellant must
demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. § 9543(a)(3)…. A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." Id. § 9544(b).
The majority of Appellant's claims challenge the performance of counsel. It is well-established that counsel is presumed effective, and the defendant bears the burden of proving ineffectiveness. To overcome this presumption, Appellant must demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the defendant suffered prejudice as a result of counsel's deficient performance. A claim of ineffectiveness will be denied if the defendant's evidence fails to meet any one of these prongs.

Commonwealth v. Hanible, 30 A.3d 426, 438-439 (Pa. 2011) (case citations and footnotes omitted).

Appellant alleges in his initial claim that the district attorney committed a Brady violation by suppressing evidence that an anonymous tipster had stated that "Jerrel" committed the murder for which Appellant was convicted.[5] Appellant's Brief at 13. Appellant asserts that the prosecutor's failure to disclose this evidence deprived him of the opportunity to locate and interview this witness and secure favorable testimony at trial. Id. at 14.

Appellant's freestanding Brady claim (unassociated with any claim that prior counsel provided ineffective assistance) could have been raised on direct appeal but was not. Hence, this claim is waived. See 42 Pa.C.S.A. § 9544(b) (an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding). This claim merits no relief.

Appellant's second claim alleges that police officers violated his constitutional rights against unreasonable searches and seizures when they seized mail from his cell at the Philadelphia Detention Center. Id. at 15. This claim, too, is unassociated with an ineffective assistance of counsel claim and, thus, could have been raised at trial or on direct appeal. Therefore, Appellant has waived review for purposes of the PCRA and no relief is due. See 42 Pa.C.S.A. § 9544(b).

In his third claim, Appellant alleges that trial counsel was ineffective in failing to challenge the trial court's ruling that permitted the jury to review during their deliberations letters written by a witness. Appellant's brief offers no argument in support of this claim. Hence, this contention is waived and no relief is due. See Pa.R.A.P. 2101.

Appellant's fourth claim alleges that trial counsel was ineffective in failing to challenge the trial court's ruling that permitted the introduction of evidence concerning prior shootings. Appellant has affirmatively waived this claim in his brief. Appellant's Brief at 12. Thus, no relief is due.

Appellant asserts in his fifth claim that trial counsel was ineffective in failing to impeach witness Bryheem Baldwin because he was on probation at the time he testified. By way of background, Baldwin voluntarily identified Appellant as the shooter shortly after the murder in this case. By the time of Appellant's preliminary hearing, however, Baldwin determined that he would not testify against Appellant and failed to appear. When he was eventually brought before the court at a rescheduled hearing, Baldwin recanted his pretrial statement. At trial, Baldwin again recanted his pretrial statement and testified that he did not see Appellant shoot the victim.

This claim merits no relief. Since Baldwin testified favorably for Appellant at trial, Appellant has failed to demonstrate that counsel lacked a reasonable basis to proceed as he did. Moreover, we cannot accept Appellant's alternate contention. Here, Appellant asserts that counsel still should have impeached Baldwin in an effort to show that, because he was on probation at the time he voluntarily identified Appellant as the shooter, he made that statement merely to curry favor with the police. This claim fails since Appellant has come forward with no evidence to establish that Baldwin was on probation at the time he identified Appellant as the assailant. No relief is due.

In his sixth claim, Appellant alleges that PCRA counsel was ineffective for failing to interview and investigate witnesses David Jones, Bryheem Baldwin, and Jerrell Smith because these individuals would offer testimony to support Appellant's innocence. This claim is waived because Appellant raised it for the first time in his concise statement. See Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). Moreover, this claim fails as each of these individuals were prosecution witnesses who testified favorably to Appellant at trial. At trial, Smith and Baldwin repudiated their pretrial statements identifying Appellant as the shooter. In addition, Jones testified that he did not see who shot the victim. Thus, this claim merits no relief because Appellant has not demonstrated any prong of the test for ineffective assistance of counsel.

In his seventh claim, Appellant asserts that his sentence of life without the possibility of parole is unconstitutional under Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012). This claim is waived as Appellant raised it for the first time on appeal. Pa.R.A.P. 302(a). Moreover, as the Commonwealth points out, Miller held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Commonwealth's Brief at 12. It is undisputed that Appellant was 19 at the time he killed Sparrow. Thus, Miller affords Appellant no basis for relief. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (concluding that Miller did not extend to nineteen-year-old PCRA petitioner for purpose of invoking newly-recognized constitutional right exception to PCRA's timeliness requirement), appeal denied, 81 A.3d 75 (Pa. 2013).

We have carefully reviewed the parties' submissions, the orders and opinions of the PCRA court, and the record certified in this matter. Based upon our review, we conclude that the PCRA court did not err in dismissing

Appellant's petition without a hearing. Accordingly, we affirm the PCRA court's order.

Order affirmed.

Judgment Entered.


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