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J-S16036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SALIM D. BROKENBOROUGH
Appellant No. 1606 MDA 2014
Appeal from the PCRA Order September 12, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001775-2010
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JUNE 18, 2015
Salim D. Brokenborough appeals from the order entered September
12, 2014, that dismissed, after an evidentiary hearing, his first petition
seeking relief pursuant to the Pennsylvania Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541–9546.1 In this appeal, Brokenborough claims
____________________________________________
1
Initially, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
dismiss the issues raised in Brokenborough’s amended PCRA petition. Those
issues are discussed in the PCRA court’s December 23, 2013 opinion, that
accompanied the order of Rule 907 notice.
The evidentiary hearing was held after Brokenborough filed a
supplemental PCRA petition in response to the PCRA court’s Rule 907 notice,
and raised the claim that trial counsel was ineffective in failing to timely
convey a plea offer. The claim of ineffectiveness in failing to timely convey a
plea offer was the only issue presented at the hearing. This issue is
addressed in the PCRA court’s decision filed September 12, 2014, that
accompanied the order dismissing Brokenborough’s amended PCRA petition
and supplemental PCRA petition.
J-S16036-15
trial counsel was ineffective in failing to (1) timely convey a plea offer made
by the Commonwealth, (2) raise sufficiency of the evidence on appeal, and
(3) object to Agent Carolina’s expert qualifications. See Brokenborough’s
Brief, at 4. Based upon the following, we affirm.
As we write primarily for the parties who are well acquainted with the
factual and procedural history, we need not reiterate the background of the
case, which has been fully set forth in the PCRA court’s decisions. See PCRA
Court Opinion, 9/12/2014, at 1–4; PCRA Court Opinion, 12/23/2013, at 1–6.
Briefly, the underlying case involved a criminal conspiracy in trafficking
cocaine and marijuana to customers in several counties from Philadelphia to
Lancaster.2 Brokenborough proceeded to a jury trial with four of his co-
conspirators, of which there were eight originally. He was convicted of three
counts of delivery or possession with intent to deliver a controlled substance,
corrupt organizations, criminal conspiracy, and criminal use of
communication facility. The trial court sentenced Brokenborough to an
aggregate sentence of 10 to 20 years’ incarceration. On appeal, this court
affirmed the judgment of sentence. Commonwealth v.
Brokenborough, 81 A.3d 993 (Pa. Super. 2013) (unpublished
____________________________________________
2
A detailed factual background of this case is set forth in this Court’s
published decision in Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super.
2013), appeal denied, 80 A.3d 775 (Pa. 2013). Huggins was one of
Brokenborough’s co-conspirators.
-2-
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memorandum). Brokenborough then filed a timely pro se PCRA petition,
after which counsel was appointed, an evidentiary hearing was held, and
relief was denied. This appeal followed.3
Initially, we note the legal principles that guide our review:
In PCRA appeals, our scope of review “is limited to the findings
of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Sam, 597 Pa. 523, 952
A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because
most PCRA appeals involve questions of fact and law, we employ
a mixed standard of review. Commonwealth v. Pitts, 603 Pa.
1, 981 A.2d 875, 878 (Pa. 2009). We defer to the PCRA court’s
factual findings and credibility determinations supported by the
record. Commonwealth v. Henkel, 2014 PA Super 75, 90 A.3d
16, 20 (Pa. Super. 2014) (en banc). In contrast, we review the
PCRA court’s legal conclusions de novo. Id.
… “It is well-established that counsel is presumed effective, and
[a PCRA petitioner] bears the burden of proving ineffectiveness.”
Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1137
(Pa. 2009); see also Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973, 975 (Pa. 1987) (“We . . . presume that counsel is
acting effectively.”); accord Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(establishing the elements a defendant must prove to show
IAC). As the Supreme Court of the United States has stated,
“counsel should be ‘strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment,’ and . . . the
burden to ‘show that counsel’s performance was deficient’ rests
squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17,
187 L. Ed. 2d 348 (2013) (quoting Strickland, 466 U.S. at 687,
690).
____________________________________________
3
Brokenborough timely filed a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal in response to the order of the PCRA court.
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To prevail on an IAC claim, a PCRA petitioner must plead and
prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for acting or failing to act; and (3) the
petitioner suffered resulting prejudice. Commonwealth v.
Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Pierce,
527 A.2d at 975-76). A petitioner must prove all three factors of
the “Pierce test,” or the claim fails. Id. In addition, on appeal, a
petitioner must adequately discuss all three factors of the
“Pierce test,” or the appellate court will reject the claim.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779–780 (Pa. Super.
2015) (en banc).
The first issue raised by Brokenborough is a claim of trial counsel’s
ineffectiveness for failing to timely convey a plea offer made by the
Commonwealth. The PCRA court, following an evidentiary hearing, rejected
Brokenborough’s claim. See N.T., 7/17/2014. We have carefully reviewed
the record, the parties’ respective briefs, and the applicable law. Having
done so, we conclude the PCRA judge, the Honorable David L. Ashworth,
correctly and cogently analyzed this issue, and no further discussion is
warranted. Therefore, we adopt Judge Ashworth’s extensive, well-supported
September 12, 2014 opinion as dispositive of Brokenborough’s first claim of
ineffectiveness. See PCRA Court Opinion, 9/12/2014, at 5–11.
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Brokenborough next claims counsel was ineffective for failing to raise
the issue of the sufficiency of the evidence on appeal. 4 Specifically,
Brokenborough states: “The PCRA court incorrectly found that the totality of
the evidence presented at trial by the Commonwealth was sufficient to
establish that Mr. Brokenborough delivered or possessed with intent to
deliver a controlled substance on at least three occasions and concluded,
therefore, that an appeal on this basis would have been unsuccessful.”
Brokenborough’s Brief, at 13.
Brokenborough also disputes the PCRA court’s finding that the trial
record established that the Commonwealth presented sufficient evidence to
meet its burden of proof on the charge of corrupt organizations.
Brokenborough contends he “did not know the basic structure of the
enterprise nor was he aware of what, if any, role he played in the alleged
distribution scheme.” Id. at 13. He states he “knew the names of no other
co-conspirators in the alleged drug organization.” Id. Brokenborough
asserts that an appeal on this basis had merit and would have been
successful. Id.
____________________________________________
4
Following the conclusion of the Commonwealth’s case at trial, trial counsel
joined in the motion for judgment of acquittal on the basis of insufficiency of
the Commonwealth’s evidence. The trial court denied the motion. N.T.,
4/18/2011, at 1488–1489.
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Brokenborough adds that his “convictions for criminal conspiracy and
corrupt use of a communications facility similarly lacked sufficient
evidentiary support.” Id. at 14.
The relevant statute regarding possession with intent to deliver
prohibits the following:
Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30).
Regarding corrupt organizations, Section 911 of the Crimes Code
provides, in pertinent part:
It shall be unlawful for any person employed by or associated
with any enterprise to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity.
18 Pa.C.S. § 911(b)(3). The term “enterprise” is defined as “any individual,
partnership, corporation, association or other legal entity, and any union or
group of individuals associated in fact although not a legal entity, engaged in
commerce and includes legitimate as well as illegitimate entities and
governmental entities.” 18 Pa.C.S. § 911(h)(3). “Racketeering activity” is
defined to include any violation of Section 780-113 of The Controlled
Substance, Drug, Device and Cosmetic Act. 18 Pa.C.S. §
911(h)(1)(ii). “Racketeering activity” is also defined to include, inter alia, a
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conspiracy to commit any of the offenses set forth in subparagraph (ii). 18
Pa.C.S. § 911(h)(1)(iii). A “pattern of racketeering activity” means “a
course of conduct requiring two or more acts of racketeering activity one of
which occurred after the effective date of this section.” 18 Pa.C.S. §
911(h)(4).
With regard to criminal conspiracy, the Crimes Code provides, in
relevant part:
A person is guilty of conspiracy with another person or persons
to commit a crime if with the intent of promoting or facilitating
its commission he … agrees with such other person or persons
that they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to commit
such crime[.]
18 Pa.C.S. § 903(a)(1).
Finally, the Crimes Code defines criminal use of a communication
facility as follows:
A person commits a felony of the third degree if that person uses
a communication facility to commit, cause or facilitate the
commission or the attempt thereof of any crime which
constitutes a felony under this title or under the act of April 14,
1972 (P.L.233, No.64), known as The Controlled Substance,
Drug, Device and Cosmetic Act. Every instance where the
communication facility is utilized constitutes a separate offense
under this section.
18 Pa.C.S. § 7512(a).
The charges against Brokenborough arose from his role in supplying
co-defendant David Lambert with cocaine and marijuana for Lambert’s drug
business. The PCRA court, in evaluating the arguable merit of the
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J-S16036-15
underlying sufficiency claim, concluded the totality of the evidence
established Brokenborough delivered or possessed with intent to deliver on
at least three occasions, namely, September 14, 2008, September 16, 2008,
and September 29, 2008.5 See PCRA Court Opinion, 12/23/2013, at 10. In
reaching this conclusion, the PCRA court reasoned:
The Commonwealth’s evidence at trial to support the drug
delivery charges included: intercepted telephone conversations
between Lambert and [Brokenborough]; intercepted telephone
conversations between Lambert and others in which
[Brokenborough] or his drugs were discussed; interpretation of
language used in these conversations by Agent David Carolina,
who had been qualified and accepted as an expert in the
“interpretation of drug and street jargon”; testimony of
surveillance agents; testimony of agents who conducted search
warrants and seized various items which included cocaine and
marijuana; and the testimony of Felicia Cooper and Justin Judd,
who were co-conspirators in the corrupt organization. This
evidence, when considered in its entirety, clearly presented
sufficient circumstantial evidence from which the jury could
conclude that Lambert and [Brokenborough] engaged in each
controlled substance delivery for which they were charged. The
calls set up the players, the time, the drug, the quantity, and the
price. The deliveries were confirmed in various instances by
follow-up calls complaining about the quantity or the quality of
the drug, by calls which asked to do it again, or by agents who
were surveilling the meet as explained in the telephone
conversations.
Cooper and Judd confirmed the fact that Lambert delivered
cocaine and marijuana, as well as the fact that they had used
the substances and knew from personal use that the substances,
in fact, were cocaine and marijuana. Additionally, cocaine and
marijuana were seized from Judd, who testified that Lambert
____________________________________________
5
The PCRA court noted that “[o]ne of the three counts of delivery or
possession with intent to deliver was withdrawn by the Commonwealth at
sentencing, however.” PCRA Court Opinion, 12/23/2013, at 10 n.11.
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had delivered them, which was corroborated by telephone calls.
These substances tested positive for cocaine and marijuana.
Cocaine was also recovered from co-defendant David Huggins
which tested positive for cocaine. The co-conspirators’
testimony, as well as the drug seizures, corroborates the fact
that Brokenborough sold cocaine and marijuana to Lambert, who
in turn sold it to the other co-conspirators, which corroborates
the interpretations by Agent Carolina that [Brokenborough] sold
cocaine and marijuana to Lambert.
Evidence supporting the fact that the charged deliveries occurred
came from other conversations which discussed the quality or
quantity of drugs delivered, conversations in which Lambert told
others that he had received the drugs, or observations made by
surveillance agents who were in place based on the
arrangements made in the telephone conversations. The actual
observation of an exchange between [Brokenborough] and
Lambert is not necessary to prove a delivery beyond a
reasonable doubt. Moreover, the seizure of drugs from
[Brokenborough] was also not necessary to prove beyond a
reasonable doubt that [Brokenborough] delivered cocaine and
marijuana to Lambert. It is well established in this
Commonwealth that the identity of an illegal drug may be
established by circumstantial evidence without ever producing
the actual contraband at trial. Commonwealth v. Rickabaugh,
706 A.2d 826, 844 (Pa. Super. 1997). …
PCRA Court Opinion, 12/23/2013, at 11–13 (record citations and footnote
omitted).
The PCRA court further opined that the evidence satisfied the elements
of the offense of corrupt organizations, in that “[Brokenborough] and his
seven co-conspirators engaged in at least three acts of selling drugs,” 6
“‘[t]he David Lambert Organization’ was a group of individuals associated in
____________________________________________
6
PCRA Court Opinion, 12/23/2013, at 15.
-9-
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fact and engaged in commerce, i.e., the illegal sale of drugs,”7 and
Lambert’s reference to a customer in an intercepted phone call with
Brokenborough, and the weight and frequency of the purchases, would
provide Brokenborough with information that Lambert was not using all the
cocaine and marijuana himself.8 The PCRA court specifically noted, “There is
no requirement that [Brokenborough] personally knows the other individuals
involved in the conspiracy and/or corrupt organization.” PCRA Court Opinion
12/23/2013, at 16–17, citing 18 Pa.C.S. § 903(b) and Commonwealth v.
Donahue, 630 A.2d 1238, 1246 (Pa. Super. 1993) (“[Defendant] knew the
basic structure of the enterprise and was aware of his role in the distribution
scheme. It was not necessary that he specifically know each person
associated with the enterprise.”).
In addition, the PCRA court found that the evidence supporting the
crimes of delivery or possession with intent to deliver and corrupt
organizations also supported the criminal conspiracy conviction. Finally, the
PCRA court found the evidence also showed Brokenborough had used a
____________________________________________
7
Id. at 16.
8
See id. at 16.
- 10 -
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phone to arrange the drug deliveries, which supported his conviction for
criminal use of a communication facility.9
Based on our review, we conclude the record confirms the PCRA
court’s determination that Brokenborough’s sufficiency claim lacks arguable
merit. It is well established that appellate counsel cannot be deemed
ineffective for failing to raise a meritless claim. Commonwealth v.
Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008). Here, the PCRA court
applied the correct legal standards for analyzing ineffectiveness and
sufficiency of the evidence, and thoroughly evaluated the evidence under the
applicable criminal statutes. See PCRA Court Opinion, 12/23/2013, at 9–20.
As we agree with the PCRA court that the record in this case did not warrant
a sufficiency challenge on appeal, no PCRA relief is due on this
ineffectiveness claim.
Lastly, Brokenborough argues that trial counsel was ineffective in
failing to object to the qualifications of Agent Carolina as an expert.10
____________________________________________
9
The PCRA court noted that the criminal use of communication facility
charge was withdrawn by the Commonwealth at sentencing. See PCRA
Court Opinion, 12/23/2013, at 18 n.13.
10
In Brokenborough’s direct appeal, he raised a challenge to Agent
Carolina’s testimony as both an expert and a fact witness. This Court
rejected Brokenborough’s claim, citing to the decision in the direct appeal of
one of Brokenborough’s co-defendants, Commonwealth v. Huggins 68
A.3d 962, 967 (Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013),
wherein this Court held that the agent could testify in a dual role. See
Commonwealth v. Brokenborough, 81 A.3d 993 (Pa. Super. 2013)
(unpublished memorandum).
- 11 -
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Specifically, Brokenborough argues Agent Carolina had never been qualified
as an expert prior to his trial. Brokenborough contends trial counsel had no
strategic reason for failing to object to Agent David Carolina’s qualifications
in order to try to prevent his testimony from being admitted at trial.
In reviewing this ineffectiveness claim, we note:
The standard for qualification of an expert witness is a liberal
one. The test to be applied when qualifying an expert witness is
whether the witness has any reasonable pretension to
specialized knowledge on the subject under investigation.
Commonwealth v. Wallace, 2002 PA Super 367, 817 A.2d 485
(Pa. Super. 2002). If he does, he may testify and the weight to
be given to such testimony is for the trier of fact to determine.
Id. A witness does not need formal education on the subject
matter of the testimony, and may be qualified to render an
expert opinion based on training and experience. The
qualification of a witness as an expert rests within the sound
discretion of the trial court, and the courts determination in this
regard will not be disturbed absent an abuse of discretion.
Commonwealth v. Serge, 837 A.2d 1255, 1260 (Pa. Super. 2003), aff'd,
586 Pa. 671, 896 A.2d 1170 (Pa. 2006), cert. denied, 549 U.S. 920 (2006).
At trial, Agent Carolina was offered as an expert in the areas of
cocaine, marijuana, wiretap investigations, and in the interpretation of drug
and street jargon. See N.T., 4/6/2011, at 424. The PCRA court opined:
“All defense counsel rigorously cross-examined the proferred expert about
his qualifications, notably pointing out that it was Agent Carolina’s first time
testifying as an expert.” PCRA Court Opinion, id. at 30. The PCRA court
noted that none of the defense attorneys objected to the Commonwealth’s
request that the court accept Agent Carolina as an expert. Id. The PCRA
- 12 -
J-S16036-15
court found the absence of any objection “suggest[ed] that there was a
consensus among counsel for [Brokenborough’s] co-defendants that Agent
Carolina possessed the requisite education, training, and experience to give
expert opinions in these areas.” Id. at 29. The PCRA court further opined
that the court properly allowed the expert testimony of Agent Carolina based
on his qualifications, despite the fact that it was his first time testifying as a
trial expert, summarizing Agent Carolina’s qualifications, as follows:
After leaving the Philadelphia Police Department in 2001, Agent
Carolina joined the Pennsylvania Office of the Attorney General
where he was involved in over 200 drug investigations in nine
years. (N.T., Trial at 417–18). His training included the
Attorney General Academy, the Drug Enforcement
Administration’s Basic Narcotics School, the Pennsylvania State
Police Wiretap School, the Department of Justice Interdiction
Training, the Attorney General Meth School, and Pennsylvania
Top Gun, a narcotics school. (Id. at 420.) Agent Carolina’s
experience included undercover narcotics work (Id. at 421), and
wiretap of over 6,000 intercepted conversations. (Id. at 422–
23.).
PCRA Court Opinion, 12/23/2013, at 32 n.18.
Based on our review, we agree with the PCRA court that
Brokenborough’s ineffectiveness claim lacks arguable merit. While this case
was Agent Carolina’s first time testifying as an expert, that fact of itself does
not disqualify him as every expert witness testifies for the first time at some
point. Furthermore, we find no abuse of discretion in the PCRA court’s
reasoning that the “consensus” of defense counsel serves to show that
Brokenborough’s trial counsel’s decision not to object was reasonable.
Finally, to the extent Brokenborough argues for the first time in this appeal
- 13 -
J-S16036-15
that because Agent Carolina testified to issues of ultimate fact trial counsel
should have objected to allowing Agent Carolina to testify, we find this
argument likewise fails. In this regard, this Court, in deciding the direct
appeal of one of Brokenborough’s co-conspirators, opined:
Based upon a plain meaning interpretation of the various rules at
play, when read in pari material, we conclude that the rules do
not preclude a single witness from testifying, or offering
opinions, in the capacity as both a lay and expert witness on
matters that may embrace the ultimate issues.
Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa. Super. 2013), appeal
denied, 80 A.3d 775 (Pa. 2013).
It is evident that counsel had no meritorious grounds upon which to
object to Agent Carolina’s qualifications, and, had counsel objected, the
court would have overruled his objection. Counsel cannot be deemed
ineffective for failing to raise a meritless objection. Therefore, we conclude
that the PCRA court properly rejected Brokenborough’s claim that trial
counsel was ineffective in not objecting to Agent Carolina’s qualifications as
an expert witness.
Order affirmed.11
____________________________________________
11
In the event of further proceedings, the parties are directed to attach a
copy of Judge Ashworth’s September 12, 2014 opinion to this memorandum,
regarding Brokenborough’s PCRA claim that trial counsel was ineffective for
failing to timely convey a favorable plea offer made by the Commonwealth.
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J-S16036-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
- 15 -
l
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
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BY: ASHWORTH, J., SEPTEMBER 12, 2014
Salim Brokenborough has filed a supplemental motion pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541-9546, in response to this Court's
Pa. R.Crim.P. 907 Notice. Following an evidentiary hearing in this matter,
Brokenborough's amendedmotion and supplemental motion will be dismissed.
I. Background
The factual and procedural history of this case may be briefly summarized as
follows.1 As a result of a Grand Jury Presentment, a criminal complaint was filed
against Petitioner on October 22, 2009. The-charges included corrupt organizations,
criminal conspiracy, criminal use of communication facility, and violations of the
Controlled Substance, Drug, Device and Cosmetic Act.2
--··· --------
1For
a more detailed discussion of the factual and procedural history of this case, see
this Court's previous opinions dated October 6, 2011, Novc1;-,1Jer 21, 2011, and December 23,
2013.
218
Pa. C.S.A. § 911 (b)(3)(4), 18 Pa. C.S.A. § 903, 18 Pa. C.S.A. § 7512(a), and 35
P.S. § 780-113(a)(30), respectively.
Circulated 06/04/2015 11:11 AM
The case proceeded to a jury trial on April 4, 2011, at the conclusion of which
Petitioner was found guilty of corrupt organizations, criminal conspiracy, criminal use of
communication facility, as well as two counts of delivery or possession with intent to
deliver a controlled substance. On August 4, 2011, Petitioner received an aggregate
sentence of 10 to 20 years' incarceration.3 A post sentence motion to modify sentence
was denied by Opinion and Order dated October 6, 2011.
Petitioner filed a direct appeal to the Superior Court of Pennsylvania (1875 MDA
2011 )4 where this Court's judgment of sentence was affirmed in an unpublished
memorandum opinion. No petition for allowance of appeal was filed with the Supreme
-~
Court of Pennsylvania.
Petitioner filed a timely pro se petition for post conviction collateral relief. Jeffrey
A Conrad, Esquire, was appointed to represent Petitioner on his collateral claims. On
August 12, 2013, a counseled amended motion was filed, in which Brokenborough
claimed ineffective assistance by trial counsel in the following particulars: (1) failure to
raise the insufficiency of the evidence on appeal; (2) failure to object to jurisdiction and
3Brokenborough
received consecutive sentences of five to ten years for criminal
conspiracy and five to ten years for one charge of delivery or possession with intent to deliver.
Brokenborough received concurrent sentences of 21 to 42 months for corrupt organizations,
and 2 to 4 years for an additional delivery or possession with intet1t to deliver" conviction. One
count of delivery or possession with intent to deliver and the criminal use of communication
facility charge were withdrawn by the Commonwealth at sentencing.
4Pursuant
to this Court's directive, Brokenborough furnished a statement of errors
· complained of on appeal which raised two issues: (1) whether the Court erred by allowing Agent
Carolina to testify in the dual role of case agent and expert witness and to draw conclusions
from and summarize facts for the jury beyond the scope of his expertise; and (2) whether the
Court erred in failing to set aside the jury's verdict imposing mandatory minimum sentences
relating to the weight of controlled substances without the presence of physical evidence. My
Rule 1925(a) Opinion of November 21, 2013, addressed these issues for the appellate court.
2
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venue in Lancaster County; (3) failure to request severance of Petitioner's case from his
co-defendants; (4) failure to object to the qualification of Agent Carolina as an expert
witness; (5) eliciting prejudicial testimony regarding Petitioner's incarceration status;
and (6) failure to request a Kloiber" instruction.6 ( See Amended Petition at ~m 13-39.)
The Commonwealth filed a response on December 19, 2013, arguing that Petitioner
was not entitled to relief and asking the Court to deny the amended motion without a
hearing.
By Order and Opinion dated December 23, 2013, I gave notice, pursuant to Pa.
R.Crim.P. 907, of my intention to dismiss Salim Brokenborouqh's amended PCRA
.,
motion without further proceedings. Brokenborough was given 30 days to either file an
amended motion or to otherwise respond to the notice. Petitioner filed a counseled
supplemental PCRA motion on January 17, 2014, alleging, for the first time, ineffective
assistance of counsel due to counsel's failure to convey a favorable plea offer made by
. .
the Commonwealth prior to trial.' An evidentiary hearing was held on July 17, 2014,
5Commonwealth
v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).
6Alfhough
the counseled motion initially contained a seventh claim alleging that trial
counsel should have preserved for, and raised .9D, appeal the Issue of a violation of Batson v.
Kentucky, 476 U.S. 79 (1986), that claim was subsequently withdrawn from the motion.
"Petitioner filed a prose amended petition in response to the Rule 907 Notice on
January 3, 2014, in which he raised a Batson claim, which had previously been withdrawn by
Brokenborough's appointed counsel, and additional ineffective assistance of counsel claims,
including the plea offer issue. An order was entered on January 8, 2014, rejecting this filing
because Petitioner is represented by counsel and, as a criminal defendant, Petitioner has no
constitutional right to hybrid representation during PCRA proceedings. Commonwealth v.
Jette, 611 Pa. 166, 23 A.3d 1032, 1038-40 (2011); Commonwealth v. Pursell, 555 Pa. 233,
724 A.2d 293, 302 (1999); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993);
Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). See also Pa.R.Crirn.P.
576(A)(4).
3
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where Brokenborough and his trial counsel, Cory Miller, Esquirel provided testimony.
Briefs having been filed by the parties, this matter is ripe for disposition.
II. Eligibility for PCRA Relief
Petitioner has raised a single claim of ineffective assistance of counsel in his
supplemental motion for post-conviction collateral relief. In order to prevail on a claim
of ineffective assistance of counsel made in the post conviction context, a petitioner
must overcome the presumption that counsel is effective by establishing by a
preponderance of the evidence that: (1) the underlying claim has arguable merit; (2)
.,
trial counsel had no reasonable basis for proceeding as he did; and (3) the petitioner
suffered prejudice. See 42 Pa. C.S.A. § 9543(a)(2)(ii); Spotz, 616 Pa. at 187, 47 A.3d
at 76 (citing Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76
(1987)).
With respect to whether counsel's acts or omissions were reasonable, defense
counsel is accorded broad discretion to determine tactics and strategy.
Commonwealth v. Fowler, 447 Pa. Super. 534, 540, 670 A.2d 153, 155-56 (1996}.
The applicable test is not whether alternative strategies were more reasonable,
employing a "hindsight" evaluation of the record, but whether counsel's decision had
any reasonable basis to advance the interests of the defendant. Commonwealth v.
Chmiel, 612 Pa. 333, 361, 30 A.3d 1111, 1127 (2011). The appellate courts will
conclude that counsel's chosen strategy lacked a reasonable basis only if the petitioner
proves that "an alternative not chosen offered a potential for success substantially
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greater than the course actually pursued." Id. at 361-62, 30 A.3d at 1127 (quoting
Commonwealth v. Williams, 587 Pa. 304, 312, 899 A.2d 1060, 1064 (2006)).
To establish the prejudice prong, the petitioner must show that there ls a
reasonable probability that the outcome of the proceedings would have been different
but for counsel's ineffectiveness. Chmiel, 612 Pa. at 362, 30 A.3d at 1127-28. "We
stress that boilerplate allegations and bald assertions of no reasonable basis and/or
ensuing .prejudice cannot satisfy a petitioner's burden to prove tha_t counsel was
·ineffec;tive." Id. (quoting Commonwealth v. Paddy, 609 Pa. 272, 292, 15 A.3d 431,
443 (2011));
Ill. Discussion
Petitioner has averred in his supplemental motion that trial counsel "never
informed him of the Commonwealth's favorable offer" of eight years' incarceration in
. .
exchange for a plea of guilty (Supplemental Motion for Post-Conviction Collateral Relief
at 1l 3.) He further testified at the PCRA hearing that he "never seen [sicJ the deal" and
that Miller never conveyed the Commonwealth's offer to him. (N.T., PCRA Hearing at
25-26.) However, in his post-hearing brief, Appellant admits that his trial counsel did
properly inform him of the Commonwealth's plea offer but he alleges, for the first time,
that the offer was communicated only after the expiration of the offer. (Brief in Support
of Defendant's Post-Conviction Collateral Rellef at 2w3.)
It is undisputed that trial counsel had a duty to communicate any offer to his
client. In Missouri v. Frye, - U.S.-, 132 S.Ct. 1399 (2012), the United States
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Supreme Court held that the defendant established a claim of ineffective assistance of
counsel because, "as a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the defendant." - U.S. at-, 132 S.Ct. at 1408 .. Specifically, in Frye,
defense counsel did not inform the defendant of the plea offer; and after the offer
lapsed the defendant still pleaded guilty, but on more severe terms. Under these facts,
the Frye Court held that counsel could be held ineffective for "allow[ing] the offer to
expire without advising the defendant or allowing him to consider it." ld. Thus, it is well-
settled that counsel will be guilty of ineffective assistance for failing to communicate a
plea offer in a timely manner.
At the PCRA hearing in the instant case, trial counsel, Cory Miller, acknowledged
that he received a plea offer from the Commonwealth. (N. T., PCRA Hearing at 9; see
also Petitioner's Exhibit No. 1.) The Assistant Attorney General in the case, Iva
· Dougherty, _offered an aggregate sentence on all counts of eight years. (Id. at 11: see
a/soPetitioner's Exhibit No. 1.) The offer was made on August 16, 2010, and it expired
on August 27, 2010. (See Petitioner's Exhibit No. 1.)
Whjle Miller testified that he never "had an opportunity" to provide a copy of the
.offer to Petitioner (N.T., PCRA Hearing at 11 ), he "distinctly recall[ed] eight years" (Id. at
15), and clearly remembered communicating the offer to Petitioner by telephone8 (Id. at
15-16), and discussing it with him "in detail." (Id. at 11-12.) He recalled that he
6Petitioner
was being held at that time in a federal detention center in Philadelphia.
(N.T., PCRA Hearing at 9, 20, 32.)
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became aware of the offer "in the summer months" and that the parties were
approaching "a trial or pretrial motion hearing" date or "something ... of significance. "9
(Id. at 12.)
In response to PCRA counsel's questioning as to exactly when he provided the
offer to Petitioner, Miller stated that he could not specifically recall when it was but "it
wasn't in the wintertime because it was rather warm outside." (N.T., PCRA Hearing at
13.) He continued: "I can say that it was clearly before the trial, because we were
getting close to trial and our minds were already made up." (Id.)
Miller specifically recalled Petitioner laughing at the offer when it was presented
l
to him and that Miller agreed that it was an "extreme offer" and they were better off
going to trial. (N.T., PCRA Hearing at 13-14.) However, Miller remarked that an offer
"is important; make no mistake." (Id. at 16.) He added: "If this is an offer that my client
is interested in taking, then that's what we'll do. I'm not going to talk him out of an
offer."· (Id.) Which is why Miller specifically recalled asking his client twice during their
telephone conversation to be sure it was Petitioner's intention to reject the offer and to
go to trial. (Id. at 18.)
Miller further testified, "with certainty," that he requested an offer from the
Commonwealth for his client. (N.T., PCRA Hearing at 17.) The offer of eight years in
prison "absolutely stands" out in his memory. (Id.) Miller concluded his testimony by
9A
scheouhnq order was entered on August 23, 2010, requiring the filing of all pre-trial
motions by October 29, 2010, and schedulinga hearing on all pre-trial motions for January 31,
2011, and a three-week trial for April 4. (See Order of August 23, 2010.) This schedullng order
was filed during the 12-day period that the Commonwealth's plea offer was open.
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asserting that Petitioner's allegation that he failed to communicate the plea offer to
Petitioner is simply false. (Id. at 17-18.)
Based upon the testimony set forth above, Petitioner retracts from his initial
position that trial counsel never informed him of the Commonwealth's "favorable offer."
(Supplemental Motion for Post-Conviction Collateral Relief at 1J 3; N.T., PCRA Hearing
at 25-26.) Rather, he now argues that Miller only communicated the offer "on or about
the time of trial in April of 2011" and that it was "a laughing matter because the time to
take advantage of the offer had come and gone." (See Brief in Support of Defendant's
Post-Conviction Collateral Relief at 3.) This is an unfair misrepresentation of Miller's
testimony and must be rejected. The evidence clearly establishes that Mille/made a
timely communication of the offer to Petitioner and that Petitioner rejected lt.:
Even assuming, arguendo, that Miller rendered deficient performance by
either failing to communicate the plea.offer entirely or communicating it after the
expiration of the offer, Petitioner must also establish prejudice in order to successfully
raise such an ineffectiveness claim. To establish prejudice in this regard,
defendants must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been afforded effective
assistance of counsel. Defendants must also demonstrate a
reasonable probability the plea would.have been entered without the
prosecution cancel_ingit or the trial court refusing to accept it, if they
had the authority to exercise that discretion under state law. To
establish prejudice in this instance, it is necessary to show a
reasonable probability that the end result of the criminal process
would have been more favorable by reason of a plea to a lesser
charqe or a sentence of less prison time.
Frye, - U.S. at-, 132 S. Ct. at 1409. S.ee also Commonwealth v. Hernandez, 79
8
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A.3d 649, 653 (Pa. Super. 2013). A PCRA petitioner bears the burden of proof, and
that burden is a preponderance of the evidence standard. 42 Pa. C.S.A. § 9543(a).
The only evidence to support the notion that Petitioner would have accepted the
Commonwealth's offer of an eight-year aggregate sentence is Broken borough's own
self-serving testimony that he "would have took [sic] it." (N.T., PCRA Hearing at 27.)
The only explanation offered as to why Brokenborough would have accepted the offer,
despite the perceived weakness of the Commonwealth's case, was that he could have
attempted to get the eight-year sentence to run concurrently with a five-year term he
was facing for violating federal parole. (Id.)
On the other hand, Miller testified that neither he nor Petitioner thougtit the
Commonwealth's offer was a favorable offer. (N.T., PCRA Hearing at 13-14.) Miller
explained that he believed theCornmonwealth had a weak case, as there was a lack of
physical evidence. (Id. at 6-7, 19.) Also, the fact that the preliminary hearing in this
case took ~o and one-half days to complete indicated to Miller and Petitioner that "the
Commonwealth had a very difficult case to put together." (Id. at 16.) As such, Miller
testified that Petitioner, after discussing the merits of the case "at length" with Miller,
decided to take the case to trial. (Id. at 7; see also 17.) Both parties agreed that their
chances were better going to trial (Id. at 14, 17, 18), as "[t]his was a case that could be
'
won." (Id. at 17.)
I·
I
Miller stated unequivocally that Brokenborough was not going to accept any offer
unless it was substantially lower than the eight-year minimum offered by the
Commonwealth. (N.T., PCRA Hearing at 19.) Brokenborough made it "very clear" to
his trial counsel that he was not going to take an eight-year plea. (Id.) Miller
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"wholeheartedly" agreed with his client's assessment of the offer. (Id. at 13-14, 16-17,
18-19.)
As noted above, Petitioner needs to establish by a preponderance of the
evidence that there was a "reasonable probability" that he would have accepted the
plea offer that included an eight-year minimum term of incarceration had it been timely
communicated to him by trial counsel, in order to satisfy the prejudice prong of the
ineffective assistance of counsel test. Frye, - U.S. at-, 132 S. Ct. at 1409. Based
upon the record before me, I must conclude that Petitioner has failed to meet his
burden of establishing that he suffered any prejudice as a result of his trial counsel's
alleged deficient performance with regard to the plea offer." Accordingly, this claim will
be dismissed.
As for the remaining claims under the PCRA, I issued an Opinion and Order on
December 23, 2013, stating my intention to dismiss those claims, pursuant to
Pa.R.Crim.P. 907. Petitioner has faired to provide any additional evidence or argument
as to why the remaining claims should not be dismissed. Furthermore, PCRA counsel
conceded that a ruling has already been rendered on those other claims. (N.T., PCRA
Hearing at 4.) Therefore, Petitioner's remaining PCRA claims will also be dismissed
without further proceedings.
10As
Petitioner is unable to establish by a preponderance of the evidence that he would
have accepted the offer, it is unnecessary to evaluate the additional requirements that the
prosecution would not revoke the offer, if it had the authority to do so, and the trial court would
ultimately accept the plea. Frye, - U.S. at-, 132 S. Ct. at 1409.
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IV. Conclusion
For the reason~ set forth above, Brokenborough's amended motion and
supplemental motion will be dismissed.
Accordingly, I enter the folfowing:
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF.PENNSYLVANIA
V. No.1775-2010
SALIM BROKENBOROUGH
ORDER
AND NOW, this 121h day of September, 2014, upon consideration of the amended post
conviction collateral relief motion of Salim Brokenborouqh, and the supplement thereto, the
~,
briefs filed by the parties, and after an evldentiary hearing in this matter, it is hereby ORDERED
that said motions are DISMISSED.
Petitioner is advised that he has the right to appeal from this Order and the right to
assistance of counsel in the preparation of that appeal. Petitioner shall have 30 days from the
date of this final Order to appeal to the S.uperlor Court of Pennsylvania. Failure to appeal within
· 3q days will result in the loss of appellate rights.
It i~ further ORDERED that Petitioner shall have the right, if indigent. to appeal in torme
pauperis and to proceed with assigned counselas provided in Pa. R.Crim.P. 122.
I certify this document to be fifed
. In the Lancaster County Office of
~;l~ii~f)th°Jou:.:~·
=~· \1.~:J:·.r<=
::.-c"·~:: ·,~
.,.0
· \'i,_,~.....' ··:. ,l Joshua G. Parsons
~. . ,,,,~~"'"''''''" · Clerk o/ the Courts
. ATIEST:
Copies to: William R. Stoycos, Senior Deputy Attorney General, Pennsylvania Office
of Attorney General, Appeals and Legal Services Section, 161h Floor,
Strawberry Square, Harrisburg, PA 17120
Jeffrey A. Conrad, Esquire, Clymer Musser & Conrad, P.C., 408 West Chestnut
Street, Lancaster, PA 17608
r:
Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- June 18, 2015
- Status
- Precedential