J-S34017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEATLH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

TYRONE BROWN

Appellant No. 1540 WDA 2017

Appeal from the PCRA Order entered September 27, 2017

In the Court of Common Pleas of Allegheny County

Criminal Division at Nos: CP-02-CR-0008582-2014 and 

CP-02-CR-0008579-2014

BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 23, 2018

Appellant, Tyrone Brow, appeals pro se from the September 27, 2017 

order dismissing his petition pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm. 

A previous memorandum from this Court includes the following factual 

summary: 

Briefly, the evidence presented at trial established that 

[Appellant] had been in a romantic relationship with Charde Hill 

for approximately four (4) years and they had two (2) children 

together. At some point, the relationship had soured and the two 

were no longer romantically involved. On May 31, 2014, 

[Appellant] was watching his two (2) children as well as Ms. Hill’s 

other two (2) children (not [Appellant’s]) while Ms. Hill ran 

errands. At some point during her errands, she discovered that 

she had missed 14 calls from [Appellant]. When she returned his 

call, he accused her of leaving her children with him so she could 

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* Retired Senior Judge assigned to the Superior Court.
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perform sexual acts on another person, and told her ‘wait till you 

get home.’ When Ms. Hill did arrive home, [Appellant] squeezed 

her neck with his hands and then put a hand over her mouth and 

nose so she could not breathe. One of Ms. Hill’s children called 

911 and she managed to escape with her children and drove them 

to a nearby church until the police arrived. By the time they 

arrived, [Appellant] was gone. 

On June 2, 2014, Ms. Hill obtained a temporary Protection 

from Abuse Order [(“PFA”)]. Thereafter, Officer Ryan Deloplaine 

of the Pittsburgh Police Department contacted [Appellant] by 

telephone and advised him that the PFA had been entered and 

that he was to have no contact with Ms. Hill or her children and 

that he was not permitted near Ms. Hill’s residence. [Appellant] 

indicated he understood and would be stopping down to the police 

station to pick up the hard copy of the PFA. 

On June 6, 2014, [Appellant] called Ms. Hill between 20 and 

25 times, sent her approximately 10 text messages expressing his 

displeasure with [their] child custody agreement and threatening 

to kill her. Ms. Hill did not respond. Later that evening, Ms. Hill 

was in her bedroom when she heard tapping on the window and 

saw [Appellant] standing outside her bedroom window. By the 

time police arrived, [Appellant] had fled. 

Then, on June 16, 2014, at approximately 2:00 a.m., Ms. 

Hill was sleeping in her bed with one of her daughters when she 

was awakened by a loud noise. She sat up and saw that her 

window had been broken and [Appellant] was in her bedroom. He 

was intoxicated and was screaming at her. Ms. Hill told him she 

had to put her daughter to bed and after doing so, ran out of the 

house, hid behind a dumpster and called police. [Appellant] was 

apprehended in the woods behind her property. 

Commonwealth v. Brown, 820 WDA 2015 (Pa. Super. 2016), unpublished 

memorandum, at 1-2 (quoting trial court opinion, 9/22/15, at 2-3). 

On the morning of June 16, 2014, shortly after Appellant broke into Ms. 

Hill’s bedroom through the window, police arrested him and charged him with 
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burglary1 and possession of marijuana2 at Docket Number 8579 of 2014, and 

one count of simple assault3 and terroristic threats4 at Docket Number 8582. 

On January 28, 2015, a jury found Appellant guilty on all counts. On April 14, 

2015, the trial court imposed an aggregate five to ten years of incarceration. 

This Court affirmed the judgment of sentence on March 18, 2016. 

Appellant filed a timely first pro se PCRA petition on February 28, 2017. 

On August 21, 2017, appointed counsel filed a no merit letter and petition to 

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

On August 31, 2017, the PCRA court granted counsel’s motion to withdraw

and filed its Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition 

without a hearing. The PCRA court dismissed the petition on September 27, 

2017. This timely appeal followed. 

“On appeal from the denial of PCRA relief, an appellate court’s standard 

of review is whether the ruling of the PCRA court is free of legal error and 

supported by the record.” Commonwealth v. Jones, 932 A.2d 179, 181 

(Pa. Super. 2007). Appellant raises nine issues—one with three subparts—on 

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1

 18 Pa.C.S.A. § 3502. 

2

 35 Pa.C.S.A. § 780-113(a)(31). 

3

 18 Pa.C.S.A. § 2701. 

4 18 Pa.C.S.A. § 2706. 
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appeal. We will address them in turn. Appellant’s first two issues are as 

follows: 

I. When witnesses were available and willing to provide 

exculpatory evidence (testimony) does trial-appellate 

counsel who know [sic] or should have known of their 

existence rendered [sic] ineffective assistance by failing to 

investigate or to call them? 

Appellant’s Pro Se Brief at 3. Appellant did not raise this issue in his PCRA 

petition or at any other time prior to this appeal. This results in waiver 

pursuant to Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.”). 

Furthermore, Appellant could not prevail on the merits of this issue. To 

establish that counsel was ineffective, a petitioner must plead and prove that 

(1) the underlying issue is of arguable merit; (2) counsel had no reasonable 

strategic basis for the action or inaction; and (3) counsel’s error prejudiced 

the petitioner. Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995), 

cert. denied, 516 U.S. 1121 (1996). Counsel will not be held ineffective for 

failing to call a witness absent some showing the witness would have been 

helpful to the defense. Commonwealth v. Brown, 767 A.2d 576, 582 (Pa. 

Super. 2001). Appellant fails to explain how any of his proposed witnesses 

would have been helpful, given that his convictions rested on Hill’s eyewitness 

testimony and Appellant’s possession of marijuana. Appellant could not obtain 

relief on this issue even had he preserved it. 

Next, Appellant argues: 
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II. Did trial counsel render ineffective assistance by failing to 

subpoena the proper witness to achieve admission of the 

broken window/detached screen, the cell-phone text, as an 

offer of proof that [Appellant] was living in the 

apartment/had his own key, post-trial counsel rendered 

ineffective assistance by failing to preserve this issue, and 

his appellate counsel rendered ineffective assistance by 

failing to properly frame these issues for appellate review? 

Appellant’s Pro Se Brief at 3. The portion of this issue arguably preserved 

before the trial court is the portion about the “cell-phone text.” Appellant’s 

Pro Se PCRA Petition, at ¶ 5(A)(6). His specific argument with regard to the 

text message, however, is indecipherable, thus precluding appellate review. 

See Appellant’s Pro Se Brief at 10-11. 

Appellant’s third issue is as follows: 

III. Whether Appellant-Petitioner was denied the right to know 

the accusations made against him? 

a. Whether [Appellant] was denied the meaningful benefits 

of independent discovery-disclosure? 

b. Whether he was denied fundamental fairness, due 

process and equal protection under both the United 

States and Pennsylvania Constitutions? 

c. Whether the court failed to issue [Appellant] any timely 

or meaningful notice of the PFA complaint, or a copy of 

the PFA final order? 

Appellant’s Pro Se Brief at 3. 

The PCRA prohibits relief for issues that have been previously litigated 

or waived. 42 Pa.C.S.A. § 9543(a)(3). Issues III(a) and (b) could and should 

have been raised before the trial court. Appellant’s failure to do so results in 

waiver of those issues for collateral review. Furthermore, Appellant fails to 
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explain how these issues are cognizable under the PCRA even if not waived. 

Appellant raised issue III(c) before this Court on direct appeal, and this Court 

denied relief. Commonwealth v Brown, 820 WDA 2015 (Pa. Super. 2016), 

unpublished memorandum, at 3-6. A previously litigated issue is not eligible 

for collateral review. 42 Pa.C.S.A. § 9543(a)(3). 

Issues four, five, and six are as follows: 

IV. Whether [Appellant] was proven guilty beyond a reasonable 

doubt? 

V. Whether he was the victim of prosecutorial misconduct and 

selective prosecution? 

VI. Whether he is the victim of judicial misconduct/abuse of 

discretion, equal protection under the law? 

Appellant’s Pro Se Brief at 3. Appellant has waived each of these issues by 

failing to raise them before the trial court. Moreover, Appellant fails to explain 

how any of these issues is cognizable under the PCRA even if not waived. 

Appellant’s seventh and eighth issues are: 

VII. Whether he was ‘denied the constitutional protection’ of the 

Sixth Amendment right, when his court appointed failed 

[sic] to proffer any real meaningful defense? 

VIII. Whether the ‘abandonment of [Appellant’s] requested 

defense was ineffective counsel? 

Appellant’s Pro Se Brief at 3. While Appellant challenged counsel’s 

presentation of Appellant’s defense in his petition (see Appellant’s Pro Se 

PCRA Petition, 2/28/17, at ¶ 5(A)(6)), he fails to develop any detailed 

argument in his brief. In particular, he fails to articulate precisely what he 

wishes trial counsel would have done. Also, he fails to articulate precisely how 
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counsel’s actions and/or inactions prejudiced him. As such, he cannot obtain 

relief on a claim that counsel was ineffective. 

In his final assertion of error, Appellant claims as follows: 

IX. Whether the court erred when it allowed the seating of a 

prospective juror who during the voir dire revealed that they 

personally had a close working relationship, and friendships 

with persons working in law enforcement or within the 

justice system? 

Appellant’s Pro Se Brief at 3. This issue is waived and unreviewable under 

§ 9543(a)(3) because Appellant could have raised it on direct review but failed 

to do so. 

Having concluded that each of Appellant’s issues is either lacking in 

merit or not reviewable on collateral appeal, we affirm the order dismissing 

his petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2018