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Commonwealth v. Brown

Superior Court of Pennsylvania

May 4, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY BROWN Appellant

         Appeal from the PCRA Order October 2, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0802711-2005

          BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E. [*]

          OPINION

          STEVENS, P.J.E.

         Appellant Gregory Brown appeals from the trial court's order entered in the Court of Common Pleas of Philadelphia County on October 2, 2015, dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Following a careful review, we affirm.

         A panel of this Court previously set forth the relevant facts and procedural history herein as follows:

Appellant's conviction stems from his assault on 26 year-old, Complainant [S.L.], in the early morning of October 31, 2004, at her apartment at 1051 E. Mount Airy Avenue in the city and county of Philadelphia. Appellant lived with his girlfriend, Tonya Feggens, in the same apartment building as Complainant, and was Complainant's drug supplier. At approximately 2 a.m., Complainant awoke to hear Appellant knocking on her door, holding a vacuum cleaner in his hand. He told Complainant that T[o]nya was getting evicted, and asked her whether she wanted to buy the vacuum cleaner from him. When she said no, Appellant told her she could have the vacuum, then asked her how much for a hug, telling her it would be the last time he would see her. Complainant opened the door partially to give Appellant a hug, and he pushed the door open and closed it behind him.
Appellant, at 6' 2'' and 280 pounds, pushed Complainant (5' 8'', 110 pounds) to the floor and held her down with his forearm. As she lay on her back, Appellant covered Complainant's mouth with his hand and started taking her clothes off. Complainant was scared, and pleaded with Appellant - telling him to stop, telling him she needed to take a shower, and that she'd had an abortion - but he continued pulling her clothes off until her pants and shorts were completely removed. Appellant told her to "Shut up" and put his fingers in Complainant's vagina. He also attempted to put his penis in her vagina, but could only put the tip in, because he was not erect. Appellant was interrupted by his girlfriend banging on the front door, then told Complainant "he would kill her if she said anything, " and continued to try and penetrate her further with his penis.
Appellant's girlfriend returned to Complainant's door several times, and continued to bang on the door, and Appellant took his penis out of Complainant's vagina without ejaculating. When Appellant got off of her, Complainant ran to the door and told T[o]nya that Appellant had raped her. Complainant ran into the laundry room across the hall, while Appellant left the apartment. While Appellant was fighting with his girlfriend in the hallway, Complainant ran back into her apartment, locked the door, and called her aunt, [Michelle J.], and told her what happened. Complainant called police, then called Michelle back, and stayed on the phone with her until they arrived approximately ten minutes later. Police officers Arthur Armstrong and Megan Marks responded to the call, noting that when they arrived Complainant was visibly upset, and wearing only a hip-length t-shirt, naked from the waist down.
They took Complainant's statement, and took pictures of the scratches on her forearms and face, then transported her to Episcopal Hospital, where she was given a rape kit, before giving her statement to SVU detective Victoria Smith. Complainant was treated for light scratches on her face and arms, but there was no bruising on her body. There was no hair or seminal fluid from Appellant found on Complainant, and no DNA matching Appellant's was found in her vagina or cervix. Appellant was arrested [in Georgia] pursuant to a warrant on June 28, 2005. Trial Court Opinion, 1/28/08, at 1-3. During his direct examination, Appellant testified that the victim consented to his sexual conduct because she had agreed to give Appellant sex in exchange for drugs. Appellant informed the jury that on at least ten prior occasions, S.L. had performed sexual favors for him and he had given her drugs in return.
Based on this evidence, Appellant was convicted of sexual assault and acquitted of rape, burglary, and trespass. The district attorney agreed to withdraw the charges of simple assault, reckless endangerment, unlawful restraint, false imprisonment, aggravated indecent assault, indecent assault, and indecent exposure.
Based on his commission of a predicate offense, Appellant was referred to the Sexual Offenders Assessment Board. The Commonwealth filed notice of its intent to proceed under 42 Pa.C.S. § 9714, 1 mandatory sentence for second or subsequent offenses, based upon Appellant's previous conviction of a crime of violence. On January 11, 2007, after the court determined that Appellant was not a sexually violent predator, Appellant was sentenced in accordance with § 9714 to ten to twenty years imprisonment. This timely appeal followed.
1 42 Pa.C.S.A. § 9714 (1) provides:
Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.

Commonwealth v. Brown, No. 429 EDA 2007, unpublished memorandum at 1-4 (Pa. Super. filed March 8, 2010).

         On direct appeal, Appellant maintained he had been denied his constitutional right to confront S.L. due to the trial court's prohibiting him from questioning S.L. regarding their prior, consensual sexual encounters on cross-examination. This Court ultimately affirmed Appellant's judgment of sentence. In doing so, we determined Appellant waived this issue because defense counsel never had attempted to cross-examine S.L. about whether she had agreed with Appellant to trade sexual favors for drugs and whether the two had engaged in such transactions in the past. Id. 5 citing N.T. Trial, 4/24/06, at 144-77. Additionally, this Court found Appellant had waived this claim for his failure to raise it in his Pa.R.A.P. 1925(b) statement. Instead, Appellant confined his issues raised therein to matters concerning a potential witness, Lonnie Crawford. Id. at 6. Our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Brown, 608 Pa. 615, 8 A.3d 340 (2010).

         Appellant filed a timely PCRA petition, pro se, on August 15, 2011. Counsel was appointed and filed an amended petition on February 3, 2015, and a Supplemental Amended Petition on July 15, 2015, raising various claims of trial counsel's ineffectiveness. After providing Appellant with notice under Pa.R.CrimP. 907, the PCRA court dismissed Appellant's petition without an evidentiary hearing on October 2, 2015, upon finding the issues presented therein lacked arguable merit. Appellant filed a timely notice of Appeal on October 22, 2015.

         In an Order entered on October 28, 2015, the PCRA court directed Appellant to file a concise statement of the matters complained of on appeal pursuant to Rule 1925(b), and Appellant filed the same on November 5, 2015. In his brief, ...


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