Commonwealth v. Brown

• Citation: 196 A.3d 130
• Decision Date: 17 October 2018
• Docket Number: No. 728 CAP,728 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lavar D. BROWN, Appellant
• Court: Pennsylvania Supreme Court

196 A.3d 130

COMMONWEALTH of Pennsylvania, Appellee

v.Lavar D. BROWN, Appellant

No. 728 CAP

Supreme Court of Pennsylvania.

Submitted: September 29, 2017

Decided: October 17, 2018

Angell, Samuel J. B., Ulstad, Tracy L., Federal Community Defender Office, Eastern District of PA, Capital Habeas Corpus Unit, The Curtis Center, Suite 545 West, Philadelphia, PA 19106-3333, for Brown, Lavar, Appellant.

George, Paul M., District Attorney of Philadelphia, Goode, Lawrence Jonathan, Mahler, Cari L., Philadelphia District Attorney's Office, 3 S. Penn Sq. Philadelphia, PA 19107-3499, for Commonwealth of Pennsylvania, Appellee.

Segal, Daniel, Hangley Aronchick Segal Pudlin & Schiller PC, Hangley Aronchick et al, 1 Logan Sq. Fl. 27, Philadelphia, PA 19103-6995, for Fair and Just Prosecution, Appellee Amicus Curiae.

Austin, Roy L., Jr., Simeone, Timothy J., Harris, Wiltshire & Grannis, 1919 M. Street NW, 8th Floor, Washington, DC 20036, Hamermesh, Matthew Aaron, Hangley Aronchick Segal Pudlin & Schiller, Hangley Aronchick et al, 1 Logan Sq. Fl. 27, Philadelphia, PA 19103-6995, for Current and Former Prosecutors, Former Judges, and Lgl. Cmty. Ldrs, Appellee Amicus Curiae.

Eisenberg, Ronald, Pennsylvania Office of the Attorney General, Law Enforcement, Pennsylvania, Pennsylvania Attorney General's Office, 1600 Arch St., Philadelphia, PA 19103, Barker, James Patrick, Henry, Michelle Ann, Selber, Jennifer Creed, Office of Attorney General, 1600 Arch Street, Philadelphia, PA 19103, Shapiro, Joshua D., Office of Attorney General, Criminal Law Division, Appeals & Legal Services Section, 16th Floor, Strawberry Square, Harrisburg, PA 17120, for Shapiro, Josh, Amicus Curiae.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DONOHUE

In this capital appeal, both Appellant Lavar D. Brown ("Brown") and the Commonwealth of Pennsylvania ("Commonwealth") challenge the order of the Court of Common Pleas of Philadelphia County dismissing Brown's petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 ("PCRA"). In this case, Brown and the Commonwealth have filed a "Joint Application for Leave to File Post-Submission Communication and Joint Motion to Vacate Death Sentence, Remand for Resentencing to Life Without Parole, and Then Transfer Appeal To Superior Court ("Joint Motion"), in which they request that this Court grant PCRA relief as to Claim VI in Brown's PCRA petition, which asserts that trial counsel provided ineffective assistance during the sentencing phase of the trial. Specifically, the parties request that this Court order that Brown's death sentence be vacated, that his case be remanded to the Court of Common Pleas of Philadelphia County for the limited purpose of resentencing Brown to life without parole, and that the case then be transferred to the Superior Court for merits disposition of Brown's guilt phase claims. For the reasons that follow, we deny the Joint Motion and affirm the PCRA court's denial of Brown's PCRA petition.

On direct appeal, this Court described the basic factual background underlying Brown's convictions for the shooting death of Robert Crawford ("Crawford"):

On December 10, 2003, [Brown], then age 24, and Rahsaan Anderson [ ("Anderson") ] were standing on Girard Avenue in Philadelphia, near a school, subway station, gas station, and restaurant. Around 3:00 p.m., [Brown] saw Robert Crawford [ ("Crawford") ] crossing Girard Avenue, and stated, "There go that pussy." N.T., 5/26/2005, at 33. [Brown] approached Crawford and, without provocation, shot him multiple times in the back.

After shooting Crawford, [Brown] and Anderson began to run but were quickly deterred by two police officers in a patrol vehicle. One officer stopped and frisked Anderson, but found no weapon. The second officer saw [Brown] across the street with his right hand in his jacket pocket and ordered him multiple times to show his hands. [Brown] refused to remove his hand from his pocket and instead ran back toward the crime scene and down an alley. The officer pursued him, commanding him to stop. [Brown] continued to run, and other officers joined the chase. [Brown] eventually crawled beneath a [Jeep Cherokee]; the officers pulled him out and took him into custody. A .380 caliber semi-automatic firearm was found near the vehicle's right rear axle.

Commonwealth v. Brown , 605 Pa. 103, 987 A.2d 699, 703 (2009).

The Commonwealth charged Brown with multiple crimes, including first-degree murder. Trial commenced on May 25, 2005 before the Honorable Teresa Sarmina, at which several eyewitnesses testified. Royal Smith ("Smith"), a youth advocate worker, identified Brown in court as the shooter, unequivocally stating that she "knew it was him because I was looking right at him. I couldn't believe it." N.T., 5/25/2005, at 63. She testified that she was sitting in her minivan, parked in a lot shared by a McDonald's restaurant and a gas station, waiting to pick up her client, Christine Ellison ("Ellison"), from the nearby William Penn High School. Id. at 48-49. At approximately 3:05 p.m., Ellison got into the front passenger seat of the minivan. As Smith prepared to pull out of the parking lot, she heard gun shots to her left. Id. at 52-53. She testified that she immediately turned in that direction and observed Brown shooting Crawford at close range. Id. at 54. After Crawford collapsed, Smith observed Brown shoot him again. Id. Brown was the only individual that Smith saw brandish a gun. Id. at 61-62.

Smith testified that she was approximately four to five feet away from the incident, it was light outside, nothing prevented her from seeing Brown's face, and she was close enough to see Brown's silver handgun emitting blue light. Id. at 51, 55, 58. Smith marked her location and Brown's at the time of the shooting on a to-scale diagram of the crime scene (hereinafter, the "Diagram"). Id. at 82. After observing Brown shoot Crawford, she saw Brown run down Girard Avenue with a "light-skinned guy," later identified as Anderson, towards a Rite Aid. Id. at 62. To Smith's surprise, Brown then ran back toward the crime scene and by the passenger side of her minivan, at which time she got another good look at his face, as "he was running extremely slow." Id. at 70-73. After police apprehended Brown minutes later, they handcuffed him and brought him back to the crime scene, where Smith identified him for police as the shooter. Id. at 77-78.

Ellison testified that she had just been released from school, and upon getting into the front passenger seat of Smith's minivan, she observed a dark-skinned man wearing camouflage pants shoot Crawford with a silver handgun. According to Ellison, the shooter and Crawford were about three to four feet from Smith's minivan when this occurred. Id. at 151. She marked her approximate location at this time on the Diagram and testified that she clearly saw the shooter's face, as nothing impeded her view of his face. Id. at 154-55. Ellison then testified that Smith pulled over to the side of Girard Avenue, at which time she observed the shooter and a light-skinned man run towards a Rite Aid. Id. at 160. Like Smith, Ellison stated that she never saw the light-skinned man with a gun, nor did she see him shoot anyone. Id. Ellison indicated that when the shooter ran back towards the minivan, she observed his face again before he disappeared down an alley. Id. at 164-65, 167-68. When police returned to the scene minutes later with Brown in handcuffs, Ellison identified him for police as the shooter. Id. at 170-71.

When asked on direct examination whether she saw the shooter in the courtroom, Ellison replied that she did not know. Id. at 149-50. On redirect, however, she identified Brown as the shooter, explaining that she had not previously identified him in court because she had been unable to get a good look at him. Id. at 214. Additionally, she stated that she independently recognized Brown because on a prior occasion predating the shooting he had asked her for her phone number. Id.

Anderson testified that he "barely knew" Brown and had only encountered him "a couple of times around the neighborhood" prior to the shooting. N.T., 5/26/2005, at 24-25. Anderson did not know Crawford. Id. at 33. On the day in question, Anderson testified that he was standing on his porch when he saw Brown walking down the street. Id. at 26. He and Brown started talking and then walked to a store where Anderson purchased food and cigarettes. Id. As they exited the store and walked across the street towards a gas station, they saw Crawford exit the same store and walk towards the area where Brown and Anderson were standing. Id. at 29. According to Anderson, Brown then referred to Crawford as a "pussy" and "turned around and just started shooting" him approximately four to six times with a silver hand gun. Id. at 35-36. Anderson described the clothing Brown was wearing – camouflage pants and a black jacket. Id. at 36.

Anderson estimated that Crawford and Brown were approximately fifteen feet apart during the shooting, while Anderson was about six feet from Brown. Id. at 34-35. Anderson marked his, Brown's and Crawford's approximate locations on the Diagram. Id. Anderson testified that when Brown began firing gun shots, he got scared and ran away toward the Rite Aid. Id. at 38-39. Two police officers briefly stopped and searched him, but upon finding no weapons, they released him and instead pursued Brown. Id. at 43-48. That evening, the police detained Anderson and took him to the police station, where he provided a witness statement implicating Brown and detailing the above sequence of events. Id. at 54.

Angela Sutton ("Sutton") testified that she and her friend, Janell Gonzalez ("Gonzalez"),¹ were crossing the street when they "saw a guy in a white skully and like a black jacket and some blue jeans shoot another guy in the back, and then he fell." N.T., 5/27/2005, at 16. Because Sutton was attempting to help...