J-S32023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RALPH ROGERS

Appellant No. 2790 EDA 2015

Appeal from the PCRA Order August 12, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0000952-2010

BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED MAY 09, 2016

Appellant, Ralph Rogers, appeals from the August 12, 2015 order, 

denying his first petition for relief filed pursuant to the Post Conviction Relief 

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

We summarize the relevant procedural history of this case as follows. 

On March 4, 2010, the Commonwealth filed an information charging 

Appellant with one count each of burglary, criminal trespass, receiving stolen 

property, resisting arrest, and disorderly conduct.1 Appellant proceeded to a 

jury trial on May 26, 2010, at the conclusion of which the jury found 

Appellant guilty of burglary and resisting arrest. The Commonwealth 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3925(a), 5104, and 5503(a)(4), 

respectively.
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withdrew the remaining three charges before trial. On July 26, 2010, the 

trial court imposed an aggregate sentence of 80 to 264 months’ 

imprisonment. Appellant filed a timely post-sentence motion on August 2, 

2010, which the trial court denied on October 8, 2010. Appellant filed a 

timely notice of appeal, and this Court affirmed the judgment of sentence on 

April 17, 2012, and our Supreme Court denied allocatur on August 31, 2012. 

Commonwealth v. Rogers, 48 A.3d 479 (Pa. Super. 2012) (unpublished 

memorandum), appeal denied, 51 A.3d 838 (Pa. 2012).

On August 26, 2013, Appellant filed a timely pro se PCRA petition. 

The PCRA court appointed counsel, who filed an amended petition on April 2, 

2015. The Commonwealth filed its answer on June 29, 2015. The PCRA 

court conducted an evidentiary hearing on July 31, 2015. On August 12, 

2015, the PCRA court entered an order denying Appellant’s PCRA petition. 

On September 10, 2015, Appellant filed a timely notice of appeal.2

On appeal, Appellant presents the following two issues for our review.

I. Was the [PCRA c]ourt in error in denying 

[Appellant]’s [PCRA petition] alleging that 

[t]rial [c]ounsel failed to communicate with 

him prior to the commencement of [t]rial?

II. Was the [PCRA c]ourt in error in denying 

[Appellant]’s [PCRA petition] alleging that 

[t]rial [c]ounsel did not adequately prepare 

and did not fully understand the issues nor 

____________________________________________

2 Appellant and the PCRA court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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strategy that [Appellant] wished to pursue in 

his defense?

Appellant’s Brief at 4.

We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

The Sixth Amendment to the Federal Constitution provides, in relevant 

part, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to 

have the Assistance of Counsel for his defence.”3 U.S. Const. amend. VI. 

____________________________________________

3

Likewise, Article I, Section 9 of the Pennsylvania Constitution states in 

relevant part, “[i]n all criminal prosecutions the accused hath a right to be 

heard by himself and his counsel ....” Pa. Const. art. I, § 9. Our Supreme 

(Footnote Continued Next Page)
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The Supreme Court has long held that the Counsel Clause includes the right 

to the effective assistance of counsel. See generally Strickland v. 

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527 

A.2d 973, 975 (Pa. 1987).

In analyzing claims of ineffective assistance of counsel, “[c]ounsel is 

presumed effective, and [appellant] bears the burden of proving otherwise.” 

Fears, supra at 804 (brackets in original; citation omitted). To prevail on 

any claim of ineffective assistance of counsel, a PCRA petitioner must allege 

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel 

had no reasonable strategic basis for his action or inaction; and (3) the 

petitioner was prejudiced—that is, but for counsel’s deficient stewardship, 

there is a reasonable likelihood the outcome of the proceedings would have 

been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence 

fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80 

A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v. 

Pennsylvania, 135 S. Ct. 50 (2014).

Although couched as two issues, we address both of Appellant’s issues 

together, because his brief states that he relies on his first issue in support 

of his second issue. Appellant’s Brief at 11. Appellant avers that trial 

(Footnote Continued) _______________________

Court has held that the Pennsylvania Constitution does not provide greater 

protection than the Sixth Amendment. Pierce, supra at 976.
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counsel was ineffective because he “did not communicate with [Appellant] 

prior to the commencement of [t]rial.” Id. at 8. In Appellant’s view, “[t]he 

only time that [Appellant] talked to his attorney after the [p]retrial 

[c]onference was a day or two before [t]rial and the only conversation then 

was [trial counsel] informing his client that [t]rial was starting on the 27th.” 

Id. Appellant purports to rely on our Supreme Court’s decision in 

Commonwealth v. Brooks, 839 A.2d 845 (Pa. 2003).

In Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super. 2012) (en 

banc), appeal denied, 63 A.3d 1245 (Pa. 2013), this Court discussed Brooks

and applied it to a similar claim to the one in this case. 

In Brooks, the appellant was convicted of firstdegree murder and sentenced to death following a 

trial where he elected to proceed pro se. Brooks, 

supra at 247. At the beginning of jury selection, the 

appellant informed the trial court that he wished to 

represent himself because his attorney had not met 

with him at any time up to that point. Id. at 247 

n.3. His attorney testified that he could only recall 

one telephone conversation with his client prior to 

trial, and that lasted no more than half an hour. Id.

at 249. His attorney also testified that he did not 

meet with Brooks while he was in prison because he 

was not “looking forward to spending any time alone 

with Mr. Brooks.” Id. In finding that Brooks’ 

attorney had no reasonable basis for not meeting 

with his client, the Court concluded the following.

General fear of a potential conflict in the 

lawyer-client relationship and a busy schedule 

simply cannot serve as a reasonable basis for 

failing to have personal contact with a client 

prior to that client’s trial on capital charges. 

To the contrary, failure to do so is ‘simply an 
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abdication’ of the most basic expectations of 

defense counsel in a capital case.

Id. at 250. The Court held that “the very nature of a 

capital case ... clearly necessitates at least one inperson meeting between a lawyer and his client 

before trial begins.” Id. at 249. Moreover, our 

Supreme Court noted “no lawyer, no matter how 

talented and efficient, can possibly forge a 

meaningful relationship with his client and obtain 

adequate information to defend that client against 

first-degree murder charges in a single thirty-minute 

telephone conversation.” Id.

Id. at 243. Applying our understanding of Brooks in Johnson, this Court 

concluded the defendant was not entitled to a new trial.

[Johnson] avers that because [trial counsel] failed to 

meet with him face-to-face until the eve of his trial, 

he is entitled to relief under Brooks. We disagree. 

Our Supreme Court emphasized in Brooks that 

Brooks’ attorney failed to meet with his client “at 

all.” [Brooks, supra] at 248. In this case, [trial 

counsel] represented [Johnson] at his preliminary 

hearing and criminal arraignment, conducted a faceto-face meeting at his preliminary hearing, 

conducted another face-to-face meeting at the prison 

with [Johnson] prior to trial, and performed at least 

one telephone consultation. PCRA Court Opinion, 

7/7/10, at 11–12, citing N.T., 3/6/06, at 48–49; 

N.T., 3/6/06, at 73–74. While we acknowledge that 

more contact may have been advisable, we disagree 

with [Johnson] that the length and frequency of the 

consultations alone can support a finding of 

ineffectiveness. We further decline to read Brooks

so rigidly that we are precluded from evaluating the 

substantive impact of the consultations [trial 

counsel] did perform.
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Id. at 243-244. Turning to our evaluation of trial counsel’s performance, we 

noted that even with the admittedly limited meetings, trial counsel ably put 

on a defense for Johnson.

The record in this case establishes 

unequivocally that [trial counsel] retained an 

investigator who testified at the evidentiary hearings 

that he had interviewed numerous witnesses prior to 

trial[,] presumably at [trial counsel]’s request[,] and 

that five of those witnesses end[ed] up testifying at 

trial for the defense. Even the alleged alibi witness, 

Ronald Crawford, who did not appear to testify at 

trial, was the subject of extensive efforts on the part 

of the investigator to secure him as a defense 

witness. In addition, the record clearly establishes 

that [trial counsel] subjected all of the 

Commonwealth[’s] witnesses to meaningful and 

effective scrutiny and cross-examination.

Id. at 244, quoting PCRA Court Opinion, 7/7/10, at 13–14. Therefore, we 

concluded that Brooks did not entitle Johnson to a new trial. Id.

Consistent with Johnson, the PCRA court declined to apply Brooks in 

this case, based on the following evaluation of trial counsel’s performance. 

[Trial counsel] ... testified at the evidentiary 

hearing about his past pre-trial, in person meetings 

and relevant discussions with [Appellant]. [Trial 

counsel] confirmed that he met with [Appellant] at 

least two (2) times prior to trial. Similar to 

[Appellant’s] testimony, [trial counsel] testified that 

the primary focus of these communications included 

the following: [Appellant’s] past burglary 

convictions; [t]he impact of these previous 

convictions at bar; [Appellant’s] decision to refrain 

from testifying at trial; [p]otential trial defenses; 

[Appellant’s] sentencing exposure if he were found 

guilty of these charges; and [Appellant’s] choice to 

not [] present any defense witnesses. [Trial 

counsel] additionally described that if he elected to 
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testify at trial[,] his past conviction(s) for burglary 

would be admitted for impeachment purposes 

against him. [Appellant] and his trial lawyer 

determined from these discussions that the best 

available defense and consistent with [Appellant’s] 

version of the events was to attack the victim’s 

credibility based on his pending, criminal drug 

charges together with use of the prosecution’s 

evidence as material to suggest the charged event 

was something other than a burglary.

...

In his witness appearance at the collateral 

hearing, [trial counsel] testified that stemming from 

his pre-trial discussions with [Appellant,] he well 

appreciated that [Appellant]’s contention [was] that 

the Commonwealth’s trial allegations stemmed from 

a drug deal gone “awry” and [that counsel] had 

determined as well as communicated to [Appellant] 

the trial defense would be an incorporation of the 

drug deal “gone bad” assertion of [Appellant] in 

combination with a vigorous attack on the victim’s 

credibility, including but not limited to confronting 

the victim when testifying about his then having a 

possession with intent to deliver prosecution pending 

against him. Wholly consistent with that which he 

discussed pre-trial with [Appellant], [trial counsel] 

mounted at trial such a defense.

PCRA Court Opinion, 12/4/15, at 10-11 (internal citations and footnote 

omitted).

Our review reveals that the PCRA court’s findings are supported by the 

record. Trial counsel testified at the PCRA hearing that he met with 

Appellant on two occasions, once at the pre-trial conference and one other 

time two days before trial. N.T., 7/31/15, at 57. Trial counsel testified that 

their meetings consisted of discussing Appellant’s prior burglary convictions, 
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and his choice not to testify for fear that those prior convictions would have 

become admissible against him. Id. at 48-49. The two also discussed 

Appellant’s version of events it was “a drug deal gone bad.” Id. at 49. Trial 

counsel also iterated that Appellant did not give him the names of any 

witness that Appellant wished to subpoena for trial. Id. at 50. They also 

discussed that the victim had a pending drug prosecution at the time, which 

they planned to bring up at trial as an attack on the victim’s credibility. Id.

at 49.

Turning to the trial transcript, we note that trial counsel successfully 

argued motions in limine to bring up the victim’s pending drug prosecution, 

and preventing the Commonwealth from introducing any prior bad acts. 

N.T., 5/26/10 (Robing Room Conference) at 11-15, 17-18. During trial, trial 

counsel immediately brought up the victim’s pending prosecution in his 

opening statement. N.T., 5/26/10 (Trial), at 123. In addition, trial counsel 

cross-examined the victim on the drug issue in this case. Id. at 167-172. 

This was part of trial counsel’s lengthy cross-examination of the victim. See 

generally id. at 149-173, 189-193, 199-204.

As we explained in Johnson, “[w]e ... decline to read Brooks so 

rigidly that we are precluded from evaluating the substantive impact of the 

consultations [trial counsel] did perform.” Johnson, supra at 243. Turning 

to that substantive impact, it is evident that trial counsel did mount a 

defense at trial to the jury. Appellant’s brief does not suggest what 
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additional things trial counsel should have done. Although Appellant’s brief 

argues that he gave names of certain witnesses to trial counsel to subpoena 

in his defense, trial counsel denied the allegation, and the PCRA court found 

trial counsel’s testimony credible. Appellant’s Brief at 11; PCRA Court 

Opinion, 12/4/15, at 24. As we have explained, the record supports the 

PCRA court’s factual findings and credibility determinations. Furthermore, 

consistent with Johnson, the PCRA court’s legal conclusion that Brooks

does not necessitate granting Appellant relief is correct. Therefore, both of 

Appellant’s issues on appeal fail.

Based on the foregoing, we conclude the PCRA court properly denied 

Appellant’s PCRA petition. See Fears, supra. Accordingly, the PCRA 

court’s August 12, 2015 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2016