J-S79023-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ZACHARY BROOKS

Appellant No. 316 EDA 2014

Appeal from the PCRA Order January 21, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0102601-2006

CP-51-CR-0907371-2005

BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 23, 2014

Appellant, Zachary Brooks, appeals from the order entered on January 

21, 2014, dismissing his first petition pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

The PCRA court aptly set forth the applicable facts and procedural 

history of this case as follows:

[Appellant] was arrested on January 8, 2004 and 

charged with possession with intent to deliver a controlled 

substance (PWID). On October 30, 2004, he was arrested 

again and charged with PWID and conspiracy. He appeared 

before [the trial court] on December 5, 2005 and pled guilty 

to all charges. On January 20, 2006, pursuant to his 

negotiated plea, [Appellant] was sentenced to one year in 

the County Intermediate Punishment (IP) program, to 

include short term inpatient treatment at Self Help and 

three months of house arrest, to be followed by two years 

of reporting probation. He was ordered to complete drug 

and alcohol treatment, seek and maintain employment, 
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receive vocational training, stop selling drugs, perform 40 

hours of community service, and pay all applicable fines and 

costs[.] [S]entences on both cases were to run concurrent. 

On July 11, 2007, [Appellant] was arrested and charged 

with PWID. On November 8, 2007, he was arrested again 

and charged with yet another PWID. On November 23, 

2007, [Appellant] was arrested for a third time and charged 

with PWID and criminal conspiracy. On March 3, 2009, he 

appeared before the Honorable Lisa Rau and pled guilty to 

all of these charges. Pursuant to his negotiated plea, Judge 

Rau sentenced him to an aggregate sentence of 5 to 10 

years [of] state incarceration.

In addition to these direct violations, [Appellant] tested 

positive for drug use on July 13, July 31, and October 11, 

2007. [Appellant] absconded from supervision after his 

urinalysis in October 2007 and his whereabouts remained 

unknown until he was arrested again for selling drugs in 

November 2007. 

On June 9, 2009, [Appellant] appeared before [the 

Honorable Genece E. Brinkley] for a violation [of probation] 

hearing. [Judge Brinkley] revoked [Appellant’s] IP 

probation and sentenced him to 5 to 10 years [of] state 

incarceration on both PWID[] [convictions], to run 

concurrent with one another, but consecutive to Judge Rau’s 

sentence. [Judge Brinkley] further sentenced him to 10 

years [of] reporting probation on the conspiracy charge, to 

run consecutive. This resulted in an aggregate sentence of 

5-10 years [of] state incarceration [followed by] 10 years 

[of] reporting probation.

[Appellant] appealed []his judgment of sentence to 

[this] Court, whereby he challenged the length of his 

sentence and claimed that [the trial court] failed to state 

sufficiently adequate reasons for the sentence and failed to 

order or consider a pre-sentence investigation report. On 

January 19, 2010, [Appellant] filed an [a]pplication to 

[v]acate, requesting that [this] Court remand [the case to 

the trial court] for approval of a nunc pro tunc motion for 

reconsideration[. On February 8, 2010, this Court] 

dismissed it without prejudice so that he could pursue it 

under the PCRA.
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On October 4, 2010, [Appellant] filed a timely pro se

petition for relief pursuant to the [PCRA]. On August 30, 

2012, appointed PCRA counsel filed an amended petition. 

On August 12, 2013, the Commonwealth filed a [m]otion to 

[d]ismiss. On December 18, 2013, [the trial court] sent 

[Appellant] a [n]otice [p]ursuant to [Pa.R.Crim.P.] 907, 

indicating that his petition would be dismissed as without 

merit. [Appellant] did not respond to the [Rule] 907 

[n]otice. On January 16, 2014, [the trial court] dismissed 

[Appellant’s] petition and an order to this effect was filed 

[on] January 21, 2014. On January 25, 2014, [Appellant] 

filed an appeal with [this] Court. On March 11, 2014, PCRA 

counsel filed a [c]oncise [s]tatement of [e]rrors 

[c]omplained of on [a]ppeal.

PCRA Court Opinion, 6/26/2014, at 2-4 (quotations and original brackets 

omitted).

On appeal, Appellant presents two issues for our consideration:

I. Was the PCRA court’s dismissal of [] Appellant’s 

ineffective assistance of counsel claims an error 

because counsel failed to present important 

documents at Appellant’s violation of probation 

hearing?

II. Was the PCRA court’s dismissal of [] Appellant’s 

ineffective assistance of counsel claims an error 

because counsel failed to file a motion for 

reconsideration that included the documents?

Appellant’s Brief at 4. 

Appellant’s two issues are inter-related and, thus, we will address 

them together. Appellant claims that counsel provided ineffective 

representation at the violation of probation hearing for failing to provide the 

trial court with documentation “that Appellant had completed drug and 

alcohol treatment and community service and had obtained employment.” 
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Id. at 8. As a result, Appellant contends that the trial court “believed 

Appellant had not completed any of his probation conditions and had feigned 

a drug problem to receive a more lenient sentence.” Id. at 9. However, 

Appellant asserts that he “completed [a] [s]elf[-h]elp program, had 

completed 40 hours of community service, and had worked as an unloader 

at Wal-Mart for at least 5 months.” Id. at 9-10. Appellant argues that 

defense counsel had no reasonable strategy for failing to provide the 

aforementioned documentation because counsel “knew the importance of 

completing these requirements and should have known simply telling the 

court they were completed was insufficient.” Id. at 10. Appellant claims 

that he was prejudiced as demonstrated by the trial court’s statements at 

the hearing and, in its written opinion, that Appellant “used the system in 

order to get treatment in the IP program ... when, in fact, [Appellant was] 

really a drug dealer[,]” “he never held a ‘real’ job and had only sold drugs 

as his source of income[,]” and he “thumbed his nose” at the trial court. Id. 

In his second issue presented, Appellant claims that counsel was ineffective 

for failing to file a motion for reconsideration attaching the relevant 

documentation for the trial court to review. Id. at 11.

“Our standard of review of a trial court order granting or denying relief 

under the PCRA calls upon us to determine whether the determination of the 

PCRA court is supported by the evidence of record and is free of legal error.” 

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). “The 
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PCRA court's findings will not be disturbed unless there is no support for the 

findings in the certified record.” Id. “In order to obtain relief based on an 

ineffective assistance of counsel claim, a petitioner must establish: (1) the 

underlying claim has arguable merit; (2) no reasonable basis existed for 

counsel's actions or failure to act; and (3) petitioner suffered prejudice as a 

result of counsel's error such that there is a reasonable probability that the 

result of the proceeding would have been different absent such error.” Id.

(brackets omitted). “Trial counsel is presumed to be effective, and Appellant 

bears the burden of pleading and proving each of the three factors by a 

preponderance of the evidence.” Id.

In this case, the PCRA court determined that Appellant failed to 

demonstrate he was prejudiced. PCRA Court Opinion, 6/26/2014, at 6. The 

PCRA court noted that Appellant “was in direct violation of his prior sentence 

after having pled guilty to three new PWID charges.” Id. at 8 (emphasis in 

original). One of those PWID convictions occurred within a school zone. Id.

The PCRA court stated that “instead of turning his life around” Appellant 

“chose to continue selling drugs.” Id. The PCRA court noted that 

Appellant’s trial counsel informed the court (acting in its capacity as the 

sentencing authority) Appellant had completed community service and a 

self-help program, but at no time mentioned Appellant’s employment at 

Walmart. Id. However, the PCRA court stated that “simply proving that he 

had completed some of the technical conditions of his IP probation would not 
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have changed [the trial court’s] determination that [Appellant] was in direct 

violation of his probation for selling drugs and had only entered the IP 

program in order to avoid state incarceration at his original sentencing so 

that he could continue selling drugs on the street.” Id. at 8-9. 

Upon review of the record, we conclude that the PCRA court’s findings 

are supported by the record and that its legal determinations are consistent 

with the law. In particular, we are persuaded that the PCRA court correctly 

determined that Appellant was not prejudiced by trial counsel’s actions. 

There was no reasonable probability that the introduction of certain 

documents regarding Appellant’s compliance with the technical conditions of 

his probation would have held sway over the effect of multiple direct 

violations on the trial court’s sentencing decision. While on probation for 

PWID, Appellant was arrested and charged with three separate PWID 

offenses. N.T., 6/9/2009, at 5-6. In one of those criminal matters, 

Appellant was selling drugs in a school zone. Id. at 12. Appellant was 

ultimately convicted of three counts of PWID and sentenced to five to 10 

years of imprisonment. Id. at 6-7. In addition, during that same period 

while on probation, Appellant failed three drugs tests for cocaine use and 

then absconded from probation supervision until police arrested him for the 

third PWID offense. Id. at 7. Furthermore, at the revocation proceeding, 

the trial court determined, and Appellant does not dispute, that Appellant 

“didn’t pay anything towards fines and costs” as imposed under the terms 
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his probation. Id. at 15. Moreover, despite the lack of documentation 

presented, Appellant told the trial court that he had performed community 

service and participated in inpatient drug treatment. Id. at 8-9. 

Based upon all of the foregoing, we conclude there was overwhelming 

evidence that Appellant was not in compliance with the terms of his 

probation. Accordingly, we agree with the PCRA court, that even if trial 

counsel had presented documentation of work, inpatient treatment, and 

community service history, there was no reasonable probability that the 

result of the proceeding would have been different. Thus, Appellant has 

failed to demonstrate that he was prejudiced by counsel’s actions and, 

hence, his first ineffective assistance of counsel claim must fail.

Furthermore, our Supreme Court has determined that “[w]hether [] 

counsel [at a violation of probation proceeding] can be deemed ineffective 

[for failing to file a motion to reconsider], [] depends upon whether [the 

petitioner] has proven that a motion to reconsider sentence, if filed, would 

have led to a different and more favorable outcome at [the violation of 

probation] sentencing.” Commonwealth v. Reaves, 923 A.2d 1119, 1131-

1132 (Pa. 2007). Again, based upon the overwhelming evidence presented 

to the trial court at the revocation of probation hearing, that Appellant was 

in both direct and technical violation of his probation by continuing to sell 

and use narcotics, Appellant has failed to prove that a motion to reconsider 
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with supporting documentation would have been successful. Accordingly,

Appellant’s second issue fails. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014