J-S28016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

ROBIN HICKMAN

Appellant No. 1043 WDA 2016

Appeal from the PCRA Order June 28, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010825-2011

BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.* MEMORANDUM BY MOULTON, J.: FILED DECEMBER 27, 2017

Robin Hickman appeals from the June 28, 2016 order entered in the

Allegheny County Court of Common Pleas denying his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm. We set forth the factual history of this case in our memorandum

affirming Hickman’s judgment of sentence:

This matter arises out of the shooting death of David

Spahr [(“Victim”)] on November 15, 2010. The

Commonwealth established that [V]ictim was found shot to

death while seated in the driver’s seat of his vehicle on Bortz

[W]ay in Swissvale, Pennsylvania. [V]ictim had been shot

at close range. One bullet had entered the left side of his

face and lodged in his right mandible. A second bullet

entered the left [side of his] chest and passed through

various organs, including the aorta, and was recovered from

the muscles of the right side of his body. Ballistic analysis

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S28016-17

- 2 -

later established that the bullet taken out of [Victim]’s right

mandible at autopsy had been fired by a .357 Taurus

revolver. The Taurus revolver had been recovered by police

during an investigation into a subsequent unrelated

homicide of Charles Wooding[,] which occurred in March of

2011, also in Swissvale. During that investigation,

[Hickman] was questioned by police and he ultimately led

police to the Taurus revolver[,] which was found where it

had been thrown into some weeds along a set of steps near

the location of the Wooding shooting. Allegheny County

ballistic experts matched the bullet taken from [Victim]’s

body with the gun that had been used in the Wooding

shooting. In addition, the Commonwealth established that a

fingerprint found on the exterior passenger’s side door of

[Victim]’s vehicle matched the right little finger print of

[Hickman].

The Commonwealth also offered at trial [Hickman]’s

confession[,] which he made at the time of his arrest on July

28, 2011. [Hickman] was given his Miranda[ v. Arizona, 384 U.S. 436 (1966)] rights at police headquarters. In his

confession, [Hickman] stated that on the day of the shooting

he returned from work to his apartment and met with

another individual Hashim Rashad [(“Co-defendant”)]. [Co- defendant] told [Hickman] that he was having problems

with [Victim] over money. [Co-defendant] then asked

[Hickman] to go with him to a meeting with [Victim] at

which time [Co-defendant] wanted [Hickman] to shoot

[Victim]. [Co-defendant] explained that he wanted

[Hickman] to shoot [Victim] because [Victim] knew where

[Co-defendant]’s mother worked and his family lived. [Co- defendant] then told [Hickman] to bring his gun, which

[Hickman] then got from his apartment. [Co-defendant]

and [Hickman] then proceeded to meet [Victim]. [Co- defendant] told [Hickman] that they were going to get into

the . . . [Victim]’s vehicle truck [sic] and then [Hickman]

was to shoot him. [Hickman] then recounted they met the

. . . [Victim] and got into his vehicle, with [Hickman] sitting

in the middle of the bench seat and [Co-defendant] on the

far right near the passenger side door. However, they drove

a short distance and ended up in an alleyway, where

[Hickman] and [Co-defendant] exited the vehicle. At that

time [Co-defendant] yelled at [Hickman] for not shooting

the victim when they first got in the truck. [Hickman] and
J-S28016-17

- 3 -

[Co-defendant] then return[ed] to the vehicle at which point

[Hickman] walked up to the vehicle and fired one shot and

then turned and ran. [Hickman] testified that as he was

running he heard additional shots being fired and he

continued running to his apartment where he hid the gun.

At trial, [Hickman] testified in his defense and recanted

the confession, alleging that he was coerced into making it.

[Hickman] testified that he was introduced to [Victim] in

November 2010 by another drug user known to him as

Queenie. Queenie told [Hickman] that [Victim] was looking

for drugs and then, accompanied by Queenie, [Hickman]

met [Victim] on a nearby street where [Victim] arrived in

his vehicle. [Hickman] testified that [Victim]:

“. . . pulled up, [Queenie] hopped in the car with

him to do the transaction, and I’m standing on

the passenger’s side. We exchanged numbers,

and he tells me to call him again anytime I have

something good, he will spend some more

money.”

[Hickman] testified that several days later, he texted

[Victim] again about meeting to buy drugs and ultimately

met [Victim] in McKeesport, a day or two before the [sic]

[Victim] was murdered. [Hickman] testified that after the

meeting in McKeesport, he never saw [Victim] again but that

he did attempt to text him on November 15 and 16, but

never got a response.

While [Hickman] denied shooting [Victim], [Hickman]

admitted that he later came into possession of the Taurus

revolver used in the [Victim] killing, but not until four

months after [Victim] was killed. [Hickman] testified that

on March 15, 2011 he met Charles Wooding who told

[Hickman] that he had a gun for sale at a low price.

[Hickman] and Wooding exchanged phone numbers and

planned on meeting later that day for [Hickman] to buy the

gun. Wooding and [Hickman] met later in the day on

Westmoreland Avenue in Swissvale in front of an apartment

building. Wooding then asked [Hickman] to go inside to

exchange the money for the gun. [Hickman] testified:
J-S28016-17

- 4 -

“. . . once we go inside, we are on the second

landing. I give him the money for the gun. He

gives me the gun. When he’s talking to me, he

steps down from the landing with his back

turned. When he turns around, pulls out a

handgun. He tells me give it up, meaning give

me everything I got. When he did this, I was in

shock. I couldn’t believe it. I stepped back and

he cocks the gun back, meaning putting a bullet

in the chamber, asks me do I think he’s playing.

I panic, I believe if I didn’t pull the trigger to the

revolver, I would have died that day.”

[Hickman] testified that after he shot Wooding he ran out of

the building through an alleyway and left by a set of steps

where he threw the gun. [Hickman] admitted that he was

later questioned by detectives about two weeks later

concerning the incident. [Hickman] testified that he told the

detectives that he had shot Wooding in self-defense and

later took detectives to find the Taurus revolver. [Hickman]

denied any involvement in the killing of [Victim]. Regarding his confession, [Hickman] testified that when

he was taken into custody on July 28, 2011 he denied being

involved in [Victim]’s murder and asked the arresting

detectives to call his mother so he could get a lawyer.

[Hickman] testified that the detectives left the room and

later returned saying that they didn’t have to call his

mother. One of the detectives then allegedly grabbed the

back of his neck and told him if he ever wanted to get out

again he needed to sign the waiver of rights form presented

to him. [Hickman] testified that he signed the form because

he didn’t believe he had a choice. [Hickman] testified that

despite repeatedly telling the police he was not involved in

the killing, “they got frustrated and on their way out -- they

want to leave the interrogation, and on the way out the

detectives pushed me onto the floor.” [Hickman] testified

that he was scared and “I would’ve said anything to get out

of that room.”

[Hickman] also presented the testimony of his father.

Robin Hickman, Sr. who testified concerning his attempts to

speak to his son when he had arrived at the police station

on the day [Hickman] was arrested. Mr. Hickman[, Sr.]
J-S28016-17

- 5 -

testified that he questioned the officers and they told him

they would be right back to talk to him about his son but

then saw them leaving and he was never given the

opportunity to speak to his son.

After being appropriately charged and during its

deliberations, the jury requested that the taped confession

be replayed. In addition, the jury requested additional

instructions on first degree and third degree murder and

conspiracy. The jury was reinstructed and the tape of the

confession was played. After additional deliberations,

[Hickman] was then found guilty . . . . Commonwealth v. Hickman, No. 448 WDA 2013, unpublished mem. at 1-5

(Pa.Super. filed Oct. 29, 2014) (internal citations omitted).

On November 15, 2012, a jury convicted Hickman of third-degree

murder, conspiracy – criminal homicide, and firearms not to be carried without

a license.1 On February 11, 2013, the trial court sentenced Hickman to an

aggregate of 22 to 44 years’ incarceration.2 The next day, counsel sought to

withdraw from representation. The trial court granted counsel’s request on

February 13, 2013 and appointed new counsel. No post-sentence motion was

filed. Hickman filed a timely notice of appeal and, on October 29, 2014, this

Court affirmed. Hickman petitioned for allowance of appeal and, on March 3,

2015, the Pennsylvania Supreme Court denied his petition. ____________________________________________

1 18 Pa.C.S. §§ 2502(c), 903(c), and 6106(a)(1), respectively.

2 The trial court sentenced Hickman to 20 to 40 years’ incarceration for

third degree murder, a concurrent 20 to 40 years’ incarceration for conspiracy – criminal homicide, and a consecutive 2 to 4 years’ incarceration for firearms

not to be carried without a license.
J-S28016-17

- 6 -

On February 29, 2016, Hickman filed a timely counseled PCRA petition.

On June 28, 2016, following a hearing, the PCRA court denied Hickman’s

petition. On July 20, 2016, Hickman filed a timely notice of appeal. PCRA

counsel filed an application for leave to withdraw as counsel. On May 30,

2017, private counsel entered his appearance on Hickman’s behalf.3

On appeal, Hickman raises two issues: (1) he “was denied effective

assistance of counsel at sentencing” and (2) he “was denied effective

assistance of counsel during the post-sentence stage of his case.” Hickman’s

Br. at 1.

Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of record

and is free of legal error.” Commonwealth v. Melendez–Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual

findings “unless there is no support for [those] findings in the certified

record.” Id.

____________________________________________

3 On appeal, PCRA counsel, Charles R. Pass, III, Esquire, filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and a petition to

withdraw as counsel. While counsel should have filed a no-merit letter

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

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

Anders brief provides greater protection to a defendant[. Therefore,] this

Court may accept an Anders brief in lieu of a Turner/Finley letter.”

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

Hickman subsequently retained private counsel, who filed a brief.

Accordingly, we grant Attorney Pass’ petition to withdraw and we will consider

only the brief filed by private counsel.
J-S28016-17

- 7 -

To prevail on an ineffective assistance of counsel claim, the petitioner

must establish: “(1) his underlying claim is of arguable merit; (2) counsel had

no reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa. 2014). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Commonwealth v.

Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)). “The failure to prove any one

of the three [ineffectiveness] prongs results in the failure of petitioner’s

claim.” Id. “In determining whether counsel’s action was reasonable, we do

not question whether there were other more logical courses of action which

counsel could have pursued; rather, we must examine whether counsel’s

decisions had any reasonable basis.” Commonwealth v. Washington, 927

A.2d 586, 594 (Pa. 2007).

I. Ineffectiveness during sentencing phase

Hickman first claims that he was denied effective assistance of counsel

during sentencing. He claims that trial counsel: (1) presented no mitigation

factors pursuant to Miller v. Alabama, 567 U.S. 460 (2012); (2) failed to

introduce exculpatory evidence – Co-defendant’s statement that it was Co- defendant who killed Victim; (3) caused Hickman to receive a disproportionate

sentence compared to Co-defendant; and (4) failed to object to improper

comments and arguments by the Commonwealth.

1. Mitigation factors
J-S28016-17

- 8 -

Hickman claims that because he was a juvenile at the time of the

offense, Miller mandated the application of certain sentencing factors.

Hickman contends that trial counsel was ineffective for failing to present a

mitigation expert or any evidence regarding these factors.

In Miller, the United States Supreme Court held that a sentence of life

imprisonment without the possibility of parole is unconstitutional when

imposed upon defendants who were “under the age of 18 at the time of their

crimes.” 567 U.S. at 465. The Court held that while it did not foreclose a trial

court’s ability to impose a sentence of life imprisonment without a possibility

of parole, it did “require [the trial court] to take into account how children are

different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison.” Id. at 480. Hickman, however, was not subject to a mandatory sentence of life

without parole; rather, the trial court sentenced Hickman according to

subsection 2502(c) of the Crimes Code, which carries a statutory maximum

of 40 years’ incarceration. See 18 Pa.C.S. § 1102(d). Therefore, Miller is

inapplicable to Hickman and the PCRA court did not err in finding that trial

counsel was not ineffective for failing to address factors discussed in Miller. 2. Exculpatory evidence

Hickman next argues that trial counsel failed to introduce exculpatory

evidence during sentencing. He claims that Co-defendant provided a

statement to the police wherein he confessed to murdering Victim. Hickman

contends that although the evidence was inadmissible at trial, trial counsel
J-S28016-17

- 9 -

was ineffective for failing to introduce it at sentencing. Hickman asserts that

because the evidence was exculpatory, it was admissible at sentencing

pursuant to Green v. Georgia, 442 U.S. 95 (1979).

The PCRA court stated:

[Hickman argues] that counsel was ineffective for failing

to present at the sentencing hearing the statement of [Co- defendant] of November 16, 2010 related to the killing of

[V]ictim. [Co-defendant] was convicted by a jury on June

6, 2013 of voluntary manslaughter and tampering or

fabricating of physical evidence related to the death of

[Victim]. [Hickman] attached to his Memorandum in

Support of PCRA Relief a copy of a statement given to police

by [Co-defendant] on November 16, 2010, the day following

the shooting. In his statement [Co-defendant] initially

denied any involvement in [V]ictim’s death, but later

changed his story and stated that he was involved in an

encounter with [V]ictim where [V]ictim pulled a gun on him

and after a struggle for control of the gun, [Co-defendant]

was able to point the gun at [V]ictim and fire a shot. He

then exited the vehicle and fired twice more at [V]ictim. In

the statement [Co-defendant] makes no reference to

[Hickman].

[Hickman] argues that counsel was ineffective for failing

to present the statement at the sentencing hearing even

though it had been ruled inadmissible during the trial.

[Hickman] contends that the statement shows that it was

[Co-defendant] who was the “actual killer.” However, this

argument is completely without merit because it simply

ignores the fact that [Hickman] also confessed to being

involved in the killing. Contrary to his assertion that he had

absolutely no involvement in the killing, there was, in

addition to his confession, physical evidence that connected

[Hickman] to the shooting. This evidence included one of

the guns used to shoot [V]ictim, as well as [Hickman]’s

fingerprint found on [V]ictim’s vehicle. The fact that [Co- defendant] did not refer to [Hickman] in the statement does

not exonerate [Hickman]. In fact, the statement reflects

that [Co-defendant] at first denied any involvement in the

murder and then claimed it occurred after [V]ictim allegedly
J-S28016-17

- 10 -

attacked him. In addition, it should be noted that at the

time of [Hickman]’s sentencing, [Co-defendant] had not

even been tried yet and, therefore, there is no indication

that [Co-defendant] may not have recanted his confession,

just as [Hickman] attempted to do. [Hickman] assumes

that the statement would be viewed as an exoneration of

[Hickman] and it would result in a lesser sentence.

However, the statement directly contradicts the findings by

the jury in [Hickman]’s case and would not have affected

the sentence imposed.

Trial Ct. Opinion, 1/19/17, at 7-8 (“1925(a) Op.”).

Further, Hickman’s reliance on Green is misplaced. Green involved

unique circumstances where: (1) in an out-of-court statement, a man who

had been convicted for the killing for which Green was being tried, claimed

that he, and not Green, was solely responsible; (2) the statement had indicia

of reliability, including that it was spontaneously made to a close friend; and

(3) the statement’s admissibility was sought in a death penalty sentence

phase before a jury. Green, 442 U.S. at 96-97. The United States Supreme

Court held that “[t]he excluded testimony was highly relevant to a critical

issue in the punishment phase of the trial . . . and substantial reasons existed

to assume its reliability.” Id. at 97. Under such unique circumstances, the

Court held that “the hearsay rule may not be applied mechanistically to defeat

the ends of justice.” Id. (quoting Chambers v. Mississippi, 410 U.S. 284,

302 (1973)).

Such “unique circumstances” were not present in Hickman’s case.

Further, regardless of the admissibility of Co-defendant’s statement, as the

PCRA court explained, the statement was not exculpatory and, in any event,
J-S28016-17

- 11 -

would not have affected Hickman’s sentence.4 Therefore, the PCRA court did

not err in finding that trial counsel was not ineffective for failing to move into

evidence this statement.

3. Disproportionate sentence

Next, Hickman claims that counsel was ineffective in failing to challenge

his sentence, which was “disproportionate to the sentence received by the

actual killer, [Co-defendant].” Hickman’s Br. at 9.

The PCRA court found that:

[Co-defendant] did not even proceed to trial until June 6,

2013, almost four months after [Hickman] was sentenced.

[Co-defendant] was not sentenced until August 22, 2013,

more than six months after [Hickman] was sentenced. [Co- defendant] was convicted of voluntary manslaughter.

Clearly counsel could not be ineffective for failing to make

an argument regarding a sentence for a different defendant

who was convicted of a different offense, which was not

even imposed at the time that [Hickman] was sentenced.

1925(a) Op. at 9. We agree. Accordingly, we conclude the PCRA court did

not err in finding that trial counsel was not ineffective for failing to raise an

argument that not only did not exist at the time of sentencing but also would

have been unavailing in any event. 4. Commonwealth’s statements

Hickman also claims that trial counsel was ineffective in failing to object

to the Commonwealth’s “false, improper, and inflammatory comments” during

sentencing. Hickman’s Br. at 10. Hickman argues that the Commonwealth

____________________________________________

4 We note that the PCRA court also presided at Hickman’s trial and

sentencing.
J-S28016-17

- 12 -

“insinuated” that he had murdered another person even though he had not

been convicted of that crime. Id.

The PCRA court found:

[I]t was [Hickman] himself who raised the issue during the

trial that the gun, which ballistic evidence connected to the

death of [V]ictim, was used by [Hickman] in another

shooting.[5] [Hickman] testified at trial that he used the

handgun to shoot Mr. Wooding. The prosecutor’s statement

merely reiterated [Hickman]’s own testimony when he

admitted his role in the shooting death of Charles Wooding.

Counsel was pointing out not only [Hickman]’s lack of

remorse, but his admitted history of gun violence and, the

fact that the gun used in Wooding’s killing was also used in

the instant case. Counsel was not ineffective for failing to

____________________________________________

5 During the trial, counsel questioned Hickman regarding what happened

on March 15, 2011 and how he came into possession of the gun, and Hickman

stated:

Earlier in the day I met Charles Wooding through

someone else I was hanging with at the time. He said he

had a gun for sale for a low price. We exchanged numbers

right there, called each other so he will know who [I] was

and I will know who he was. We planned on meeting later

on in the day. Later on he called me to meet up with him.

I met him on Westmoreland Avenue, . . . . I'm thinking we

are going to do the transaction in front of an apartment

building, but he tells me to come inside. Once we go inside,

we are on the second landing. I give him the money for the

gun. He gives me the gun. When he’s talking to me, he steps

down from the landing with his back turned. When he turns

around, he pulls out a handgun. He tells me give it up,

meaning give me everything I got. When he did this, I was

in shock. I couldn’t believe it. I stepped back and he cocks

the gun back, meaning putting a bullet in the chamber, asks

me do I think he’s playing. I panicked. I believed if I didn’t

pull the trigger to the revolver, I would have died that day.

N.T., 11/15/12, at 194-96.
J-S28016-17

- 13 -

object to this statement and the statement was not

considered in the sentencing . . . .

1925(a) Op. at 9-10. We agree and conclude the PCRA court did not abuse

its discretion in finding that trial counsel was not ineffective for failing to object

to the Commonwealth’s statement. Further, Hickman claims that trial counsel was ineffective in failing to

object to the Commonwealth’s arguments that: (1) Hickman showed no

remorse with regards to Victim’s death because the Commonwealth knew of

Co-defendant’s statement confessing to the police, and (2) Hickman “needs

to pay for what he has seen and deserves the statutory maximum for murder

in the third degree,” because Hickman should be sentenced according to what

he did as opposed to what he has seen. Hickman’s Br. at 10 (emphasis in

original).

The PCRA court found:

[T]he Assistant District Attorney was clearly permitted to

argue for a legal sentence, and [Hickman’s] claim is

meritless for the reasons set forth above regarding [Co- defendant]’s statement. The Assistant District Attorney was

entitled to argue for a sentence consistent with the jury’s

verdict and within the appropriate guidelines.

1925(a) Op. at 10. We agree. Further, a review of the sentencing transcript

reveals that the Commonwealth stated “[Hickman] needs to pay for what he

has done and deserves the statutory maximum for murder in the third

degree.” N.T., 2/11/13, at 16 (emphasis added). Accordingly, we conclude

Hickman’s claims are meritless and the PCRA court did not abuse its discretion

in finding that trial counsel was not ineffective.
J-S28016-17

- 14 -

II. Ineffectiveness during post-trial phase

Next, Hickman claims counsel was ineffective in failing to file a post- sentence motion after Hickman requested that he do so. Hickman claims that

there was “exculpatory evidence and mitigation arguments that, if presented,

would have provided a reasonable probability for a lesser sentence than the

maximum third degree murder.” Hickman’s Br. at 11-12.

Our Supreme Court has held that a claim raising trial counsel’s alleged

ineffectiveness for failure to file a post-sentence motion “does not fall within

the limited ambit of situations where a defendant alleging ineffective

assistance of counsel need not prove prejudice to obtain

relief.” Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa.

2009). In Commonwealth v. Reaves, Reaves claimed that counsel was

ineffective for failing to raise at the violation of probation (“VOP”) hearing or

in a post-sentence motion that the VOP court failed to state on the record its

reasons for imposing its sentence. 923 A.2d 1119, 1122 (Pa. 2007). The

Court held that Reaves was required to show actual prejudice to prevail. Id.

at 1129-30. Similarly, Hickman must prove that he suffered actual prejudice

by trial counsel’s failure to file a post-sentence motion.

Here, the PCRA court stated:

[I]t is clear that [Hickman] has failed to establish that a

motion for reconsideration of sentence would have resulted

in a different and more favorable sentence. . . . [T]he

sentence was within the standard range, was based on a full

consideration of the presentence report, the facts of the

crime and the evidence presented at the sentencing

hearing. The various evidence proffered by [Hickman] as
J-S28016-17

- 15 -

discussed herein would not have resulted in an order

modifying the sentence to a different or more favorable

sentence. Therefore, [Hickman] has failed to demonstrate

actual prejudice as a result of ineffective assistance of

counsel.

1925(a) Op. at 7. We agree and conclude that Hickman failed to establish

actual prejudice. Therefore, trial counsel was not ineffective in failing to file

a post-sentence motion.

Order affirmed. PCRA counsel’s petition to withdraw granted.6

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2017

____________________________________________

6 We reject the Commonwealth’s argument that we should quash

Hickman’s second brief, filed by private counsel. An appellant faced with a

petition to withdraw has an immediate right to proceed pro se or with privately

retained counsel. See Commonwealth v. Muzzy, 141 A.3d 509, 512

(Pa.Super. 2016) (“[U]pon the filing of counsel’s petition to withdraw, the

petitioner-appellant has the immediate right to proceed in the appeal pro se

or through privately-retained counsel. This is not a new requirement; it is

simply clarification of long-standing procedure.”) (emphasis omitted and some

emphasis added); Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184

(Pa.Super. 2016) (stating counsel’s petition to withdraw must advise an

“[a]ppellant of his absolute right to proceed pro se or with privately retained

counsel.”) (emphasis added). Further, as stated above, we considered only

the brief filed by private counsel.