Commonwealth v. Brown
Citation | 2016 PA Super 176,145 A.3d 196 |
Decision Date | 12 August 2016 |
Docket Number | No. 2923 EDA 2014,2923 EDA 2014 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Richard BROWN, Appellant. |
Court | Superior Court of Pennsylvania |
Paul M. George, Wyncote, for appellant.
Hugh J. Burns, Jr., Kelly B. Wear, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
OPINION BY LAZARUS
, J.:
Richard Brown appeals from the order, entered in the Court of Common Pleas of Philadelphia County, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541
–9546.1 Because trial counsel failed to have even one face-to-face meeting with Brown prior to his capital trial, we are constrained to deem such conduct constitutionally2 ineffective representation pursuant to Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245 (2003), as it relates to the facts of this case. Thus, we reverse and remand for a new trial.
The trial court set forth the relevant facts of the case as follows:
Trial Court Opinion, 7/19/07 at 1–6. (footnotes omitted).
In April 2004, June 2004, and December 2004, the court sent Nino Tinari, Esquire, notices indicating that he had been appointed to represent Brown and attached for trial in Brown's case as his court-appointed attorney. Four months prior to trial, Brown privately retained new counsel, Jack McMahon, Esquire. Attorney McMahon, however, was unable to proceed to trial on the trial date due to “issues that he c[ould not] control.”3 As a result, the court ordered Tinari to represent Brown at trial.4 In July 2005, Brown5 was tried by a jury before the Honorable Renee Cardwell Hughes. After the jury returned its verdict,6 Brown was sentenced to life imprisonment.7 Brown filed a timely direct appeal. Our Court affirmed his judgment of sentence. See Commonwealth v. Brown, 974 A.2d 1177 (Pa.Super.2009)
(unpublished memorandum). The Supreme Court subsequently denied Brown's petition for allowance of appeal on October 1, 2009. Commonwealth v. Brown, 602 Pa. 661, 980 A.2d 604 (2009).
On March 19, 2010, Brown timely filed the instant pro se PCRA petition. The PCRA court appointed Teri B. Himebaugh, Esquire8 who later filed an amended petition. On July 22, 2013, the Honorable M. Teresa Sarmina held an evidentiary hearing on Brown's PCRA petition, limited to the following issues: (1) whether trial counsel was ineffective for failing to obtain exculpatory information disclosed by Commonwealth witness Vincent Smithwick to federal authorities during proffer sessions, and (2) whether trial counsel was ineffective for failing to meet with the petitioner prior to trial. Trial counsel, the trial prosecutor, and Brown testified at the hearing.
On July 29, 2013, Brown filed a motion for PCRA discovery, within which he requested his prison visitation logs. However, before the motion was ruled upon, counsel requested and the court granted PCRA counsel leave to withdraw. Newly-retained counsel, Paul George, Esquire, entered his appearance and filed a motion to reopen the record to present Brown's prison visitation logs. The court granted Brown's motion and, at an additional hearing on November 25, 2013, received the evidence from the recovered logs. On January 13, 2014, the PCRA court issued its Pa.R.Crim.P. 907
notice of intent to dismiss Brown's petition. In response, Brown requested permission to amend his PCRA petition to include two additional claims of trial counsel's ineffectiveness and, again, asked the court to open the record. On March 7, 2014, the court heard oral argument on whether counsel was ineffective for failing to call character witnesses. On June 20, 2014, the PCRA court held an evidentiary hearing at which Brown presented character witness testimony that he would have presented at trial had he been given the opportunity.9 The Commonwealth...
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......While our Court acknowledged that additional pre-trial attorney-client contact "may have been advisable," it declined to read Brooks in a way that would prevent it from analyzing the substantive impact that counsel had on the defendant's trial strategy. Id . at 243-44. Commonwealth v . Brown , 145 A.3d 196, 203 (Pa. Super. 2016) (footnote omitted; emphasis in original). In denying Appellant's PCRA claim, the PCRA court found the instant case analogous to Johnson . Here, [Appellant] was sentenced to life imprisonment following a non-capital murder trial. Trial counsel ......
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Commonwealth v. Montgomery
...entitled to presumptions of prejudice based on an ineffective assistance counsel claim of inadequate consultation); Commonwealth v. Brown, 145 A.3d 196, 207 (Pa. Super. 2016) (discussing a claim regarding trial counsel's failure to have any in-person consultation with the PCRA petitioner). ......
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