J-S28022-16

 2016 PA Super 176

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD BROWN

Appellant No. 2923 EDA 2014

Appeal from the PCRA Order October 3, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0808071-2004

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

OPINION BY LAZARUS, J.: FILED AUGUST 12, 2016

Richard Brown appeals from the order, entered in the Court of 

Common Pleas of Philadelphia County, denying his petition filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 Because 

trial counsel failed to have even one face-to-face meeting with Brown prior 

to his capital trial, we are constrained to deem such conduct constitutionally2

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The standard of review of an order denying a PCRA petition is whether that 

determination is supported by the evidence of record and is free of legal 

error. The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. Commonwealth v. 

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

2 The Sixth Amendment to the United States Constitution provides that “[i]n 

all criminal prosecutions, the accused shall enjoy the right . . . to have the 

Assistance of Counsel for his defense.” Moreover, Article I, Section 9 of the 

(Footnote Continued Next Page)
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ineffective representation pursuant to Commonwealth v. Brooks, 839 A.2d 

245 (Pa. 2003), as it relates to the facts of this case. Thus, we reverse and 

remand for a new trial.

The trial court set forth the relevant facts of the case as follows:

Brian Prout (also identified on this record as AZ), Christopher 

Smith (Smith is also identified as Jug-Head), and Vincent 

Smithwick (hereinafter Smithwick or also identified as Scooter) 

were paid enforcers who killed for profit at the command of 

Richard Brown (also referred to as Brown, or identified as 

Manny-Boo). In a conversation with Smithwick on February 7, 

2003, Brown discussed his plan to kill Anthony Harris (Harris, or 

the decedent), and Richard Powell (Harris's [sic] best friend; 

hereinafter Powell). Brown specifically told Smithwick, ‘we goin' 

to grab Harris.’ After finalizing the plan, Brown[,] Smithwick, 

Prout, and Smith got into Brown's car to set out to find Harris. 

Brown arrived at the home of Tonya Brister and Frank Tompkins 

at 3911 Fairmount Avenue in the City and County of 

Philadelphia. He arrived at the house unannounced dressed in 

all black and wearing black gloves. Brown talked with Tiesha 

Brister, Tonya’s sister while three (3) to four (4) other males 

waited outside. After a few minutes, Brown left the house and 

Tiesha quickly closed and locked the door behind him. Later, 

Powell was approached by Brown on the street who told him, “I 

need you to take a ride with me.” Powell stated he couldn't 

because he had to pick up his wife. Powell also spoke with 

Smith, who at the time was wearing a bulletproof vest. Powell 

later saw Harris and asked him if he had plans for the night. 

Harris said he was going to Little Frank's house [to] smoke 

(Footnote Continued) _______________________

Pennsylvania Constitution provides in relevant part that “[i]n all criminal 

prosecutions the accused hath a right to be heard by himself and his 

counsel[.]” The Pennsylvania Supreme Court has held that with respect to 

the right to counsel, Article I, Section 9 provides the same level of protection 

to criminal defendants as does the Sixth Amendment. See Commonwealth 

v. Pierce, 527 A.2d 973 (Pa. 1987). 
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weed. Powell warned Harris to be careful. When Harris arrived at 

Tonya's he was informed that Brown had been by the house 

earlier asking questions. Frank Tompkins (Tonya's boyfriend); 

Ronnie-Ron (Harris’ cousin), Tonya, Tiesha, and Harris went 

upstairs to a second floor bedroom to smoke marijuana and 

watch television. A few moments later, someone knocked on the 

front door downstairs. One of the younger children in the house 

yelled up to Harris to come to the door. After speaking with the 

visitor, he returned upstairs. Someone knocked on the door a 

second time, again asking for Harris, this time he remained 

downstairs for about fifteen (15) minutes. Harris returned to the 

bedroom and began pacing by the window. Harris turned to the 

others in the bedroom and said, “I'll be back, don't smoke my 

weed.” Harris threw his hat on the bed and said, “If my girl 

calls, tell her you got my phone, I went to the store.” At 

approximately 9:30 pm, Harris left his coat, cell phone, hat, 

and walked out the front door. 

A short while later, Smith drove Harris to see Brown. Before 

Harris could exit the car, Prout tapped his AK-47 on Harris’s [sic] 

window, and told him to get out. When Harris got out and 

attempted to run, Prout shot him. Harris, still conscious, was 

lifted into the back seat of a red Taurus wagon driven by 

Smithwick. Hyneith Jacobs (identified on this record as NeefBuck or Jacobs) was across the street at the time and saw Prout 

shoot Harris. Brown saw Jacobs and threatened him to ensure 

that he did not [] talk to the police. Not willing to take any 

chances on disclosure, Brown forced him to ride along and 

participate in disposing of Harris’s [sic] body. 

Smithwick drove the wagon with Smith and Prout, while Harris 

sat bleeding in the back seat. Smickwick [sic] followed Brown 

who was driving a gold Impala sedan. While in the back seat, 

Harris was asked by Smith and Prout if he attempted to have 

Brown killed, which he denied. Prout and Smith removed Harris' 

jewelry, watch, and $1,000 cash from him. The men drove to an 

agreed upon location down by the Schuylkill river. Brown told 

Smithwick, “put [Harris] to sleep.” Brown handed Smithwick a 

pair of black athletic gloves, and Smithwick shot Harris once in 

the forehead with a .357 handgun. Anthony Petty (identified on 

this record as Stutter-Ant) who had been in the car with Brown, 

began tying Harris' body with rope and bricks along with Prout. 

Smith[,] Prout, and Jacobs drug [sic] Harris through the snow to 

the river's edge, then dumped his body into the river. The men 
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got into the cars and drove to 76

th 

and Elmwood Streets in the 

City and County of Philadelphia. Once there [PettyL] Prout, and 

Smithwick met BrownL] Jacobs, Jawayne Brown/ Maurice Brown 

and Fat-Mark to eat and hang out.

Jack Darrah, a CSX employee and eyewitness, saw two vehicles/ 

a station wagon and a sedan, parked off Wharton and Schuylkill 

Avenue in the City and County of Philadelphia after midnight. He 

saw four (4) males dragging a body towards the river's edge. 

Police then received a radio call for “males dumping a body into 

the river.” Police arrived at a salt factory located at 1500 37

th 

Street in the City and County of Philadelphia. Drag marks were 

discovered in the snow leading to the river's edge. A trail of 

fresh blood led down to the river’s edge. Numerous footprints 

were found surrounding the path of blood. As police approached 

the bank of the river they discovered a body floating upside 

down in the water. The police Marine Unit was summoned and 

retrieved Harris’s [sic] body from the water. The police 

recovered one (1) .357 fired cartridge at the scene, as well as 

one Timberland boot, and multiple layers of crinkled duct tape 

formed into large circles approximately one (1) foot wide. A 

Motorola pager was also recovered but its owner could not be 

determined due to the excessive wear, scratch marks/and blood 

on its face. The next day all of Anthony Harris' jewelry and 

watch were sold by Smithwick and Smith on the street and they 

shared in the profit. Vincent Smithwick was arrested on March 

25, 2003. Christopher Smith was stopped by police on April 

13, 2003 at 6

th 

and Spring Garden Streets, and a black semiautomatic handgun was confiscated from his possession. 

Richard Brown and Brian Prout were arrested on May 19, 

2003, at the Lincoln Greene Apartments. Two (2) handguns, 

a full magazine clip for a .45 handgun, and two (2) bulletproof 

vests were recovered from that location. Ballistics evidence 

collected at the location where Anthony Harris was killed, as 

well as recovered from Harris's [sic] body, matched the guns 

that were recovered from the apartment. 

Trial Court Opinion, 7/19/07 at 1-6. (footnotes omitted). 

In April 2004, June 2004, and December 2004, the court sent Nino 

Tinari, Esquire, notices indicating that he had been appointed to represent 
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Brown and attached for trial in Brown’s case as his court-appointed attorney. 

Four months prior to trial, Brown privately retained new counsel, Jack 

McMahon, Esquire. Attorney McMahon, however, was unable to proceed to 

trial on the trial date due to “issues that he c[ould not] control.”3 As a 

result, the court ordered Tinari to represent Brown at trial.4 In July 2005, 

Brown5 was tried by a jury before the Honorable Renee Cardwell Hughes. 

After the jury returned its verdict,6 Brown was sentenced to life 

imprisonment.7 Brown filed a timely direct appeal. Our Court affirmed his 

judgment of sentence. See Commonwealth v. Brown, 974 A.2d 1177 

(Pa. Super. 2009) (unpublished memorandum). The Supreme Court 

____________________________________________

3 N.T. Pretrial Discussions, 6/28/05, at 9. In fact, his sister had just died 

and he needed to take care of the out-of-town funeral arrangements.

4 Voir dire began on June 30, 2005.

5 Brown, Prout and Smith were tried jointly as co-defendants. Judge Hughes 

retired from the bench on June 3, 2011.

6 Brown was also convicted of robbery, kidnapping, criminal conspiracy and 

carrying a firearm without a license. He was sentenced on those charges, 

respectively, as follows: 10-20 years’ imprisonment; 10-20 years’ 

imprisonment; 10-20 years’ imprisonment; and 31⁄2-7 years’ imprisonment. 

The conspiracy sentence was ordered to run consecutively to his murder 

sentence, and the remaining sentences ran concurrently with his murder 

sentence.

7 Brown was not represented by Attorney Tinari at sentencing. Rather, 

Attorney McMahon represented him at the penalty phase where the jury did 

not find aggravating circumstances to support imposition of the death 

penalty.
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subsequently denied Brown’s petition for allowance of appeal on October 1, 

2009. Commonwealth v. Brown, 980 A.2d 604 (Pa. 2009).

On March 19, 2010, Brown timely filed the instant pro se PCRA 

petition. The PCRA court appointed Teri B. Himebaugh, Esquire8 who later 

filed an amended petition. On July 22, 2013, the Honorable M. Teresa 

Sarmina held an evidentiary hearing on Brown’s PCRA petition, limited to the 

following issues: (1) whether trial counsel was ineffective for failing to 

obtain exculpatory information disclosed by Commonwealth witness Vincent 

Smithwick to federal authorities during proffer sessions, and (2) whether 

trial counsel was ineffective for failing to meet with the petitioner prior to 

trial. Trial counsel, the trial prosecutor, and Brown testified at the hearing.

On July 29, 2013, Brown filed a motion for PCRA discovery, within 

which he requested his prison visitation logs. However, before the motion 

was ruled upon, counsel requested and the court granted PCRA counsel 

leave to withdraw. Newly-retained counsel, Paul George, Esquire, entered 

his appearance and filed a motion to reopen the record to present Brown’s 

prison visitation logs. The court granted Brown’s motion and, at an 

additional hearing on November 25, 2013, received the evidence from the 

recovered logs. On January 13, 2014, the PCRA court issued its 

Pa.R.Crim.P. 907 notice of intent to dismiss Brown’s petition. In response, 

____________________________________________

8 On June 19, 2012, Himebaugh filed a motion for leave to amend Brown’s 

PCRA petition, which she later filed on October 26, 2012.
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Brown requested permission to amend his PCRA petition to include two 

additional claims of trial counsel’s ineffectiveness and, again, asked the court 

to open the record. On March 7, 2014, the court heard oral argument on 

whether counsel was ineffective for failing to call character witnesses. On 

June 20, 2014, the PCRA court held an evidentiary hearing at which Brown 

presented character witness testimony that he would have presented at trial 

had he been given the opportunity.9 The Commonwealth presented rebuttal 

testimony at that hearing as well. On October 2, 2014, in open court, the 

PCRA court dismissed Brown’s petition, finding that he did not meet his 

burden to prove the ineffectiveness claims.10 This timely appeal follows.

On appeal, Brown presents the following issues for our review:

____________________________________________

9 Although the court did not formally grant Brown leave to amend his 

petition to include these additional ineffectiveness claims, Brown did file a 

consolidated petition to reopen the record to amend his petition as well as 

an amended petition raising these claims. Cf. Commonwealth v. Elliott, 

80 A.3d 415 (Pa. 2013) (additional PCRA claims waived on appeal where 

petitioner failed to raise new claims in original PCRA petition or counsel’s 

amended petition; interjecting claims in supplemental brief not sufficient to 

amend petition to include claims). Moreover, the fact that the court held a 

Rule 908 evidentiary hearing specifically on those claims allows us to infer 

that it implicitly granted Brown the right to raise the claims. Therefore, we 

find them properly preserved. See Pa.R.Crim.P. 905.

10 See Strickland v. Washington, 466 U.S. 668 (1984) (setting forth 

three-prong test for ineffectiveness claims); see also Commonwealth v. 

Spotz, 47 A.3d 63, 76 (Pa. 2012) (to prevail on ineffectiveness claim, 

petitioner must plead and prove, by preponderance of evidence that (1) 

underlying legal claim has arguable merit; (2) counsel had no reasonable 

basis for action or inaction; and (3) petitioner suffered prejudice because of 

counsel’s action or inaction).
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(1) Did the PCRA court erroneously deny [Brown’s] petition 

where court-appointed counsel never visited or consulted 

with [Brown] before or during his capital trial?

(2) Did trial counsel provide ineffective assistance where, 

because of his failure to consult with his capitally charged 

client, counsel failed to investigate and present character 

testimony and failed to investigate and object to the 

Commonwealth’s inadmissible negative character 

witnesses?

(3) Should [Brown] be awarded a new trial based on afterdiscovered evidence, where key Commonwealth witness 

Hyneith Jacobs has admitted giving intentionally false 

testimony to deflect blame from himself?

(4) Did the PCRA court erroneously deny an evidentiary 

hearing regarding the proposed testimony of Edith Bond, a 

witness who observed a key portion of the incident and 

whose testimony exculpated Richard Brown?

(5) Did trial counsel provide ineffective assistance in litigating 

an oral, mid-trial, boilerplate motion to suppress physical 

evidence, and, to the extent that trial counsel preserved 

[Brown’s] suppression claim, was direct appeal counsel 

ineffective for failing to litigate this issue on appeal?

(6) Did trial counsel provide ineffective assistance where he 

failed to request a jury instruction regarding other crimes 

evidence and failed to object to the trial court’s failure to 

give such an instruction?

(7) Did trial counsel provide ineffective assistance where he 

failed to obtain critical discovery relating to the 

Commonwealth’s star witness Vincent Smithwick?

Because we find this issue dispositive of the instant appeal, we first 

address Brown’s claim that trial counsel was ineffective where he “never 

visited or consulted with [him] before or during his capital trial.” Appellant’s 

Brief at 36.
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The seminal case on this issue was decided by our Supreme Court in 

2003. In Commonwealth v. Brooks, supra, the defendant, who chose to 

proceed pro se during his murder trial, raised a claim of stand-by counsel’s 

ineffectiveness for failing to meet with him at any point prior to trial. In his 

capital direct appeal, our Supreme Court reversed the defendant’s firstdegree murder conviction and verdict of death, stating:

As this testimony makes clear, [counsel] never once met with 

[the defendant] in person before his trial on capital charges. In 

fact, [counsel] testified that he could only specifically recall one 

telephone conversation with [defendant], and that conversation 

lasted just twenty minutes to one-half hour. It should go 

without saying that 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. Although a lawyer can always learn 

certain information from his client over the telephone, we simply 

would be discounting the gravity of a death penalty case were 

we to say that a lawyer representing a defendant in such a case 

has done his job effectively when he has spent only limited time 

on the telephone with his client. Indeed, the very nature of a 

capital case, typically quite involved and always 

subjecting the defendant to the possibility of death,

clearly necessitates at least one in-person meeting 

between a lawyer and his client before trial begins. 

Without such a meeting, there is little to no hope that the 

client will develop a fundamental base of communication 

with his attorney, such that the client will freely share 

important information and work comfortably with the 

lawyer in developing a defense plan. Moreover, only a 

face-to-face meeting allows an attorney to assess the 

client’s demeanor, credibility, and the overall impression 

he might have on a jury. This is of particular importance in 

cases in which the client may take the stand in his defense or at 

the penalty phase in an attempt to establish the existence of 

particular mitigating circumstances. As Appellant was deprived 

of the benefits of a face-to-face meeting here, it is clear that 

Appellant’s ineffectiveness claim has arguable merit. See 
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[Commonwealth v.] Douglas, 737 A.2d [1188,] 1199 [Pa. 

1999].

Id. at 249 (emphasis added).11 Brooks essentially announced the minimum 

action required by counsel to provide what is deemed constitutionally 

effective representation in capital cases: counsel must conduct at least one 

face-to-face meeting with his client.

More recently, in Commonwealth v. Johnson, 51 A.3d 237 (Pa. 

Super. 2012) (en banc), the defendant, who was also convicted of firstdegree murder and sentenced to life in prison, argued on collateral appeal 

that trial counsel was ineffective where he failed to have a face-to-face 

meeting with him until the eve of trial. The majority determined that where 

counsel had a last minute meeting with Johnson on the eve of trial, a face-

____________________________________________

11 In Commonwealth v. Britt, 83 A.3d 198 (Pa. Super. 2013), a threejudge panel of this Court affirmed a defendant’s conviction for first-degree 

murder and his sentence of life imprisonment. In that case, the defendant 

contended on direct appeal that counsel was per se ineffective for failing to 

“establish a relationship with him, interview him, keep him informed, take 

prompt action to protect his rights, or investigate this matter.” Id. at 201. 

The defendant, relying on Brooks, supra, argued that the trial court failed 

to protect his rights when it neglected to conduct any inquiry into trial 

counsel’s readiness for trial. Id. at 202. However, ultimately we found that 

because Britt’s claims were non-record based and because he had not 

waived PCRA review, he could not seek review of his ineffectiveness claims 

on direct appeal but must have them deferred to PCRA review. Id. at 204, 

citing Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Thus, we find 

that any discussion regarding Brooks is dicta, and, therefore, neither 

binding nor relevant to our resolution of the instant case. Moreover, we 

distinguish the facts in Britt where counsel “had met with Appellant well 

before trial,” id. at 205, from the instant case where there is no evidence 

that Tinari ever met with Brown.
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to-face meeting with the defendant at his preliminary hearing, and a phone 

consultation with his client, he was not per se ineffective. Essentially, the 

Court found that counsel’s limited pretrial contact with his client was entirely 

distinguishable from the attorney in Brooks who “failed to meet with his 

client ‘at all.’” Id. at 243.12 While our Court acknowledged that additional 

pre-trial attorney-client contact “may have been advisable,” it declined to 

read Brooks in a way that would prevent it from analyzing the substantive 

impact that counsel had on the defendant’s trial strategy. Id. at 243-44.

Subsequently, our Supreme Court revisited the Brooks issue in 

Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013). In that case the 

Supreme Court was faced with determining whether capital trial counsel was 

ineffective for “completely fail[ing] to communicate with [the defendant] in 

preparation for trial.” Id. at 425. The Court determined that Elliott would 

not be entitled to relief under Brooks because the defendant neither sought 

____________________________________________

12 The concurrence in Johnson, authored by the Honorable David N. Wecht, 

which was also joined by the Honorable Mary Jane Bowes, astutely points 

out that not only must capital defense counsel meet face-to-face with his 

client at least once before trial, but that that consultation must be truly 

substantive. Johnson, 51 A.3d at 250, 252 (Wecht, J., concurring) 

(“Brooks[’] core premise is that at least one in-person meeting is necessary 

effectively to represent a defendant facing a first-degree murder trial. The 

meeting is not optional [and] cannot be an afterthought or a token visit 

made only to comply with the bare minimum standard.”). Here, where we 

have no evidence of even one face-to-face meeting between Brown and 

Attorney Tinari prior to trial, an analysis of counsel’s contact is not dictated 

by the holding of Brooks. 
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permission to amend his later petition to include reference to Brooks and 

the precise issue of counsel’s ineffectiveness, nor had Brooks been decided 

prior to Elliott’s appeal. Id. at 431. However, in coming to its conclusion, 

the Court noted that: 

It is clear that a majority of this Court in Brooks expressly 

required that counsel representing a defendant in a capital 

murder trial conduct a substantive, face-to-face consultation 

with the defendant prior to trial, and held that a failure to do so 

amounted to ineffectiveness of counsel warranting the grant of a 

new trial.

Id. The Court also made an important distinction between the analysis of 

failure-to-consult ineffectiveness claims pre- and post-Brooks. Specifically, 

prior to Brooks our courts had declined to evaluate such ineffectiveness 

claims based solely upon the existence or duration of counsel’s pretrial faceto-face consultation with the defendant. Id.

Instantly, at the PCRA hearing, both Brown and Attorney Tinari 

testified that Attorney Tinari was present for Brown’s preliminary hearing 

and conducted pre-trial discovery on his behalf. However, Attorney Tinari 

had no specific recollection of ever having met with Brown face-to-face to 

talk to him about the substance of his case or ever having spoken with him 

over the phone prior to trial. N.T. PCRA Hearing, 7/22/13, at 21. Attorney 

Tinari testified that he recalled having reviewed all pre-trial discovery at 

some point and having visited the site of the shooting. Id. at 17. But, 

counsel could not say whether his actions were for the preliminary hearing 

or for the trial of Brown’s capital case.
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Brown testified at the hearing that he never met face-to-face with 

Attorney Tinari prior to trial.13 Id. at 56. Brown acknowledged that 

Attorney Tinari was present for his preliminary hearing, but he stated that 

Attorney Tinari never spoke to him about the case before, during or after the 

preliminary hearing and that immediately following the Commonwealth’s 

witness testimony, “[Attorney Tinari] asked to be excused from the 

Preliminary Hearing.” Id. at 57. The next time Brown saw Attorney Tinari 

was at his trial. Id. Brown also testified that he tried to call Attorney Tinari 

several times prior to trial while he was incarcerated, but he never was able 

to speak with him. Id. at 57-58.14

Significantly, on June 28, 2005,15 prior to trial, the trial judge had an 

on-the-record conversation with Brown and the attorneys involved in the 

____________________________________________

13 Brown admitted several prisoner visitors’ logs dating from September 

2004 to his trial in July 2005, none of which listed Tinari as a visitor and the 

Commonwealth did not offer any testimony to the contrary.

14 Brown also testified that had Attorney Tinari met with him prior to trial he 

would have given Attorney Tinari the names of several eyewitnesses and 

alibi and character witnesses names. Brown also would have asked Tinari to 

challenge the information provided by the confidential informant involved in 

the case, which led to the issuance of the search warrant for the apartment 

where they uncovered physical evidence linking the crime to Brown. Id. at 

59. While Brown may have raised these potential areas to investigate, they 

also by no means replace an informed attorney’s analysis of possible 

defenses and trial strategies.

15 Brown has been unable to obtain notes from a June 27, 2005 conversation 

between Attorney McMahon and Judge Hughes. He alleges that the 

conversation may never have been transcribed.
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case regarding Brown’s privately retained counsel, Attorney McMahon. The 

court noted that Attorney McMahon had “very legitimate reasons” for not 

being able to honor the scheduled trial date,16 and because of those reasons 

____________________________________________

16 Although not raised in the current appeal, in his amended PCRA petition 

Brown argued that trial counsel was ineffective for failing to raise the claim 

that he was denied his right to counsel of choice. See Amended PCRA 

Petition, 10/26/12, at 51. Specifically, Brown averred that he paid Attorney 

McMahon $10,000 in April 2005 to retain his services for trial. The record 

contains a Pa.R.A.P. 1923 motion filed by Brown in which he recreates the 

discourse between Attorney McMahon and Judge Hughes during counsel’s 

request for a continuance due to the death of his sister and his responsibility 

to arrange her out-of-town funeral. According to Brown, Judge Hughes 

denied counsel’s continuance request, and informed counsel that if he 

entered his appearance he would be starting trial on that date. Pa.R.A.P. 

1923 Motion, 10/26/12, at 2. While the court never entered a formal order 

denying Brown’s Rule 1923 motion, it implicitly did so by omitting the issue 

from being included at his PCRA evidentiary hearing. 

As we have already recognized, an accused has the constitutional right 

to counsel. See supra note 2. The right to choose his or her own counsel, 

however, must be weighed against, and may reasonably be restricted by, 

the state’s interest in the swift and efficient administration of criminal 

justice. Commonwealth v. Randolph, 873 A.2d 1277, 1282 (Pa. 2005). 

Here, Brown privately retained Attorney McMahon to represent him at his 

capital trial. Brown did nothing to intentionally delay the start of trial. Cf.

Commonwealth v. Travillion, 17 A.3d 1247 (Pa. 2011); Commonwealth 

v. Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009); Commonwealth v. Kelly, 5 

A.3d 370 (Pa. Super. 2010). Under the particular circumstances where 

retained counsel’s sister had passed away and Brown had been developing a 

defense strategy with counsel in his capital case for months, we believe that 

the court abused its discretion in denying Attorney McMahon’s first and only 

record request for a continuance to give him additional time to prepare for

trial. This is especially so where the court failed to conduct any balancing 

test to determine whether “the swift administration of justice would be 

vitiated by granting [counsel’s] continuance,” Commonwealth v. Prysock, 

972 A.2d 539, 544 (Pa. Super. 2009), or even inquire as to when counsel 

would be able to proceed to trial, and consider severing his case from that of 

his co-defendants. See Commonwealth v. McAleer, 748 A.2d 670, 674 

(Pa. 2000) (“a myopic insistence upon expeditiousness in the face of a

(Footnote Continued Next Page)
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he had never entered his appearance in the case. N.T. Pretrial Discussions, 

6/28/05, at 5-6. During the discussion, Brown told the trial judge that 

Attorney Tinari had never come to see him the entire time prior to trial and 

that Attorney Tinari did not know his case. Id. at 8-9, 10. Despite his 

legitimate concerns involving a life-or-death matter, the court informed 

Brown that “he had created this problem for himself” by having talked to 

Attorney McMahon months prior which “create[d] in Mr. Tinari’s mind a 

situation to believe that you and Mr. McMahon might work this out, but you 

didn’t.” Id. at 9-10.17 After assuring Brown that Attorney Tinari “kn[ew] his 

case” and was “one of the most successful attorneys in the Commonwealth,” 

the trial judge told Brown “we’re going to trial.” Id. This is not a case of 

whether Attorney Tinari was competent to try this matter. But rather, where 

Brown had retained his own counsel and developed a rapport with same, 

forcing appointed counsel who had not met with Brown even once before 

(Footnote Continued) _______________________

justifiable request for delay can render the right to defend with counsel an 

empty formality.”) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)); 

see also Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (where 

defendant faced first-degree murder charges for which Commonwealth 

sought death penalty, court manifestly abused its discretion in denying 

multiple motions for continuance in weeks prior to start of trial; trial court 

should pay careful attention to nature of crimes at issue and level of 

intricacy of evidence to be presented by parties when ruling on continuance 

motion).

17 We find the trial court’s reasoning faulty where there is no way that 

Attorney McMahon or Brown could have predicted that counsel’s sister would 

pass away on the eve of trial, necessitating a continuance. 
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trial was an abuse of discretion and forced appointed counsel to be 

ineffective by court fiat.

As the court pointed out at the PCRA hearing, at the close of the 

Commonwealth’s case the trial judge asked Brown whether he was going to 

present evidence in the matter, to which Brown replied that he would not 

testify. N.T. Trial (Jury), 7/19/05, at 67-68. Brown stated that while he had 

consulted with counsel regarding whether he should take the stand, it was 

his decision not to testify. Id. at 68 (“Is it your decision and yours alone 

after seeking [counsel’s] advice?” “My decision.”). Moreover, when the 

court asked Brown if he was satisfied with Attorney Tinari’s representation, 

Brown responded, “I[’ll] tell you after closing arguments.” Id. at 69. In 

response, the trial judge told Brown that he had to tell her now. Brown 

responded, “Yes.” Id. 

While it could be argued that Brown’s admission of adequate 

representation near the end of trial waives his claim on appeal, we do not 

find that Brown’s answer defeats his ineffectiveness claim. As Brown 

acknowledged at the PCRA hearing, he felt as though when he was asked 

the question, the trial judge was “kind of putting him in a situation also, so –

yes, I just answered. I just said yes.” N.T. PCRA Hearing, 7/22/13, at 85. 

Moreover, Brown’s impression that he felt coerced to answer “yes” to the 

question is further supported by the court’s actions at the June 28, 2005 

pretrial proceeding where the court gave him no option but to proceed with 
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Attorney Tinari as his trial counsel without fully considering his claim that he 

had never met with counsel prior to trial.

Finally, despite the trial judge’s opinion that Attorney Tinari was “one 

of the most successful attorneys in the Commonwealth,” N.T. Pretrial 

Discussions, 6/28/05, at 9, in Brooks our Supreme Court held that “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 thirtyminute telephone conversation.” Brooks, supra at 249. Here, Brown and 

Attorney Tinari did not even have the limited thirty-minute phone 

conversation which was afforded the defendant in Brooks. In fact, to the 

contrary, the record contains no evidence that they had any consultation or 

conversation about the case prior to the start of trial or had ever met before 

in an unrelated case or matter other than during the preliminary hearing in 

the instant case. Cf. Elliott, supra (distinguishing facts of Brooks where 

defendant had met with counsel in four, unrelated criminal cases and was 

familiar with and had working relationship with him). 

Under such circumstances, it is clear that Brown’s ineffectiveness claim 

has arguable merit. Brooks, supra at 249. Counsel offered no 

explanation, let alone a reasonable one, as to why he failed to meet with 
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Brown prior to trial or return any of his phone calls.18 Id. at 250. Moreover, 

even if Attorney Tinari competently represented Brown at trial, one’s 

constitutional right to the assistance of counsel also includes meeting with a 

defendant prior to trial because “in order to prepare a defense to a charge of 

murder in the first degree, it is essential that at the very least, counsel meet 

with his client in person to, inter alia, gather information from the client, 

evaluate the client’s demeanor, and try to establish a working 

relationship.”19 Id. Under such circumstances, Brown was prejudiced by 

counsel’s failure to meet with him in person prior to trial. Id.

Finally, the trial court and the Commonwealth assert that because 

Brown suffered no prejudice due to the overwhelming evidence of guilt 

presented at trial, he is not entitled to relief under the Strickland

____________________________________________

18 The obvious inference from the record is that once Attorney McMahon was 

retained, counsel did not believe that he had any further responsibility. 

However, there is no valid reason why Attorney Tinari had not met with his 

client even once in the eleven months before Brown hired Attorney 

McMahon.

19 The Commonwealth claims that because Brown did not receive the death 

penalty, like the defendant in Brooks, he was not prejudiced. Appellee’s 

Brief, at 18. However, Brooks does not limit its holding to whether a firstdegree murder defendant ultimately receives a sentence of life imprisonment 

or the death penalty. Rather, the Court states that “the very nature of a 

capital case, typically quite involved and always subjecting the defendant to 

the possibility of death, clearly necessitates at least one in-person meeting 

between a lawyer and a client before trial begins.” Brooks, supra at 249; 

Id. at 250 (“In order to prepare a defense to a charge of murder in the first 

degree, it is essential that at the very least, counsel meet with his client in 

person[.]”).
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ineffectiveness test. However, we remind the trial court and the 

Commonwealth that while Brooks did cite to the three-pronged Strickland 

ineffectiveness test, the Court concluded that “an attorney who does not 

meet in person with his client at all prior to a capital trial simply cannot be 

deemed sufficiently prepared to defend his client’s life.” Brooks, supra at 

250 n.7 (emphasis added). With this precept in mind, the Brooks Court 

presumed that the defendant was prejudiced because “a defense to the 

charge of murder in the first degree” was not able to be prepared where 

counsel had never met with his client prior to trial. Id. at 250. See Elliott, 

supra at 431 (“Brooks expressly required that counsel representing a 

defendant in a capital murder trial conduct a substantive, face-to-face 

consultation with the defendant prior to trial, and held that a failure to do so 

amounted to ineffectiveness of counsel warranting the grant of a new 

trial.”).20 Indeed, the failure to meet with Brown and not to be aware of 

potential character and fact witnesses belies the Commonwealth’s and trial 

court’s position.

Instantly, we cannot affirm the trial court’s decision to proceed with a 

capital murder trial when counsel, albeit reputable and competent, never 

had any in-person consultation with his client to determine an adequate 

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20 See Elliott, supra at 451 (Castille, J., concurring) (“[T]he Brooks

majority had established a bright-line rule that failure to meet with a client 

face-to-face established ineffectiveness per se.”).
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defense, learn of any potential witnesses or develop any trial strategy. 

Accordingly, we find that Brown was denied effective assistance of counsel,21

Brooks, supra, and reverse the order denying Brown PCRA relief and 

remand for a new trial. Johnston, supra.

Order reversed. Case remanded for a new trial. Jurisdiction 

relinquished.22

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2016

____________________________________________

21 The Commonwealth contends in its brief that Brown “admitted he had not 

been willing to cooperate with appointed counsel” when he failed to tell 

Attorney Tinari about a potential alibi on the eve of trial or did not discuss 

witnesses with him on the first day of trial. Appellee’s Brief, at 15. 

However, we remind the Commonwealth that Brown is entitled to 

constitutionally-based effective representation and that the duty to consult is 

placed on counsel, not his client.

22 Having reversed the PCRA court and remanded for a new trial, we need 

not reach the remaining issues raised on appeal.