Commonwealth v. Brown, 2923 EDA 2014

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY LAZARUS, J.
• Citation: 2016 PA Super 176,145 A.3d 196
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Richard BROWN, Appellant.
• Docket Number: No. 2923 EDA 2014,2923 EDA 2014
• Decision Date: 12 August 2016

145 A.3d 196
2016 PA Super 176

COMMONWEALTH of Pennsylvania, Appellee
v.
Richard BROWN, Appellant.

No. 2923 EDA 2014

Superior Court of Pennsylvania.

Submitted March 7, 2016.
Filed Aug. 12, 2016.

145 A.3d 197

Paul M. George, Wyncote, for appellant.

145 A.3d 198

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:

Brian Prout (also identified on this record as AZ), Christopher Smith (Smith is also identified as Jug–Head), and Vincent Smithwick (hereinafter Smithwick or also identified as Scooter) were paid enforcers who killed for profit at the command of Richard Brown (also referred to as Brown, or identified as Manny–Boo). In a conversation with Smithwick on February 7, 2003, Brown discussed his plan to kill Anthony Harris (Harris, or the decedent), and Richard Powell (Harris's [sic] best friend; hereinafter Powell). Brown specifically told Smithwick, ‘we goin’ to grab Harris.' After finalizing the plan, Brown [,] Smithwick, Prout, and Smith got into Brown's car to set out to find Harris.

Brown arrived at the home of Tonya Brister and Frank Tompkins at 3911 Fairmount Avenue in the City and County of Philadelphia. He arrived at the house unannounced dressed in all black and wearing black gloves. Brown talked with Tiesha Brister, Tonya's sister while three (3) to four (4) other males waited outside. After a few minutes, Brown left the house and Tiesha quickly closed and locked the door behind him. Later, Powell was approached by Brown on the street who told him, “I need you to take a ride with me.” Powell stated he couldn't because he had to pick up his wife. Powell also spoke with Smith, who at the time was wearing a bulletproof vest. Powell later saw Harris and asked him if he had plans for the night. Harris said he was going to Little Frank's house [to] smoke weed. Powell warned Harris to be careful. When Harris arrived at Tonya's he was informed that Brown had been by the house earlier asking questions. Frank Tompkins (Tonya's boyfriend); Ronnie–Ron (Harris' cousin), Tonya,

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Tiesha, and Harris went upstairs to a second floor bedroom to smoke marijuana and watch television. A few moments later, someone knocked on the front door downstairs. One of the younger children in the house yelled up to Harris to come to the door. After speaking with the visitor, he returned upstairs. Someone knocked on the door a second time, again asking for Harris, this time he remained downstairs for about fifteen (15) minutes. Harris returned to the bedroom and began pacing by the window. Harris turned to the others in the bedroom and said, “I'll be back, don't smoke my weed.” Harris threw his hat on the bed and said, “If my girl calls, tell her you got my phone, I went to the store.” At approximately 9:30 pm, Harris left his coat, cell phone, hat, and walked out the front door.

A short while later, Smith drove Harris to see Brown. Before Harris could exit the car, Prout tapped his AK–47 on Harris's [sic] window, and told him to get out. When Harris got out and attempted to run, Prout shot him. Harris, still conscious, was lifted into the back seat of a red Taurus wagon driven by Smithwick. Hyneith Jacobs (identified on this record as Neef–Buck or Jacobs) was across the street at the time and saw Prout shoot Harris. Brown saw Jacobs and threatened him to ensure that he did not [ ] talk to the police. Not willing to take any chances on disclosure, Brown forced him to ride along and participate in disposing of Harris's [sic] body.

Smithwick drove the wagon with Smith and Prout, while Harris sat bleeding in the back seat. Smickwick [sic] followed Brown who was driving a gold Impala sedan. While in the back seat, Harris was asked by Smith and Prout if he attempted to have Brown killed, which he denied. Prout and Smith removed Harris' jewelry, watch, and $1,000 cash from him. The men drove to an agreed upon location down by the Schuylkill river. Brown told Smithwick, “put [Harris] to sleep.” Brown handed Smithwick a pair of black athletic gloves, and Smithwick shot Harris once in the forehead with a .357 handgun. Anthony Petty (identified on this record as Stutter–Ant) who had been in the car with Brown, began tying Harris' body with rope and bricks along with Prout. Smith [,] Prout, and Jacobs drug [sic] Harris through the snow to the river's edge, then dumped his body into the river. The men got into the cars and drove to 76th and Elmwood Streets in the City and County of Philadelphia. Once there [PettyL] Prout, and Smithwick met [BrownL] Jacobs, Jawayne Brown/ Maurice Brown and Fat–Mark to eat and hang out.

Jack Darrah, a CSX employee and eyewitness, saw two vehicles/ a station wagon and a sedan, parked off Wharton and Schuylkill Avenue in the City and County of Philadelphia after midnight. He saw four (4) males dragging a body towards the river's edge. Police then received a radio call for “males dumping a body into the river.” Police arrived at a salt factory located at 1500 37th Street in the City and County of Philadelphia. Drag marks were discovered in the snow leading to the river's edge. A trail of fresh blood led down to the river's edge. Numerous footprints were found surrounding the path of blood. As police approached the bank of the river they discovered a body floating upside down in the water. The police Marine Unit was summoned and retrieved Harris's [sic] body from the water. The police recovered one (1) .357 fired cartridge at the scene, as well as one Timberland boot, and multiple layers of crinkled

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duct tape formed into large circles approximately one (1) foot wide. A Motorola pager was also recovered but its owner could not be determined due to the excessive wear, scratch marks/and blood on its face. The next day all of Anthony Harris' jewelry and watch were sold by Smithwick and Smith on the street and they shared in the profit. Vincent Smithwick was arrested on March 25, 2003. Christopher Smith was stopped by police on April 13, 2003 at 6th and Spring Garden Streets, and a black semi-automatic handgun was confiscated from his possession. Richard Brown and Brian Prout were arrested on May 19, 2003, at the Lincoln Greene Apartments. Two (2) handguns, a full magazine clip for a .45 handgun, and two (2) bulletproof vests were recovered from that location. Ballistics evidence collected at the location where Anthony Harris was killed, as well as recovered from Harris's [sic] body, matched the guns that were recovered from the apartment.

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

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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...