J-S20044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE M. BROWN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1229 EDA 2014

Appeal from the PCRA Order March 21, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1301955-2006

BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED September 5, 2017

Jesse M. Brown appeals from the order entered in the Philadelphia 

County Court of Common Pleas, dated March 21, 2014, dismissing his first 

petition filed under the Post-Conviction Relief Act (“PCRA”).1 Brown seeks 

relief from the judgment of sentence of an aggregate term of life 

imprisonment, imposed on April 21, 2008, following his jury convictions of 

first-degree murder, a firearms violation, and possessing an instrument of 

crime (“PIC”).2 On appeal, he raises claims asserting the ineffective 

assistance of trial counsel. For the reasons below, we affirm.

The PCRA court summarized the factual history as follows:

____________________________________________

1

 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 2502, 6106, and 907, respectively.
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On May 13, 2006 the victim in this matter, Tariq Blackwell, 

was shot and killed by [Brown] on Porter Street in Philadelphia, 

Pennsylvania. At [Brown]’s trial the victim’s girlfriend, Jerrica 

Fulton, testified that she had been on Porter Street with the 

victim before the shooting occurred. The witness testified that 

on the morning of May 13, 2006[,] Tariq Blackwell and [Brown] 

began to argue when they saw each other on Porter Street. At 

trial, defense counsel claimed that this argument was the result 

of [Brown] pursuing the victim’s girlfriend, Jerrica Fulton, the 

night before this incident took place.1 Jerrica Fulton did testify 

that on May 12, 2006 [Brown] approached her as she was sitting 

in front of her house and [Brown] was riding by on his bike. ... 

[Brown] got off his bike and handed her a piece of paper which 

stated his name, “Jay” with his phone number and said, “call 

anytime.” However, Jerrica Fulton also testified that [Brown] 

wanted her to give the paper to her mother and that she never 

informed Tariq Blackwell of the piece of paper [Brown] handed to 

her.2

__________________

1

 Defense counsel confronted the witness on the stand 

with notes of testimony from a preliminary hearing that 

took place on November 8, 2006. In the notes, Jerrica 

Fulton had testified that the argument between [Brown] 

and the deceased was over her “boyfriend being jealous.” 

However, at this trial Jerrica Fulton testified that she did 

not remember making that statement. 

2 Jerrica Fult[o]n’s best friend, Shanique Hawkins, also 

testified at this trial. Shanique Hawkins testified that she 

was present on May 12, 2006 when [Brown] gave the 

piece of paper with his phone number on it to Jerrica 

Fulton. Shanique Hawkins was not able to hear the words 

exchanged between [Brown] and Ms. Fulton but did 

witness the exchange between the two individuals. Also, 

Ms. Hawkins was present at the argument that took place 

later that evening between [Brown] and Tariq Blackwell, 

where she heard [Brown] yell “it ain’t over with” as she, 

Tariq Blackwell and Jerrica walked away.

__________________

Later that evening, Tariq Blackwell, Jerrica Fulton and 

Shanique Hawkins were standing in front of a store on 7th and 

Ritner Street[s]. [Brown] was also standing in front of the store 

with another individual. Jerrica Fulton testified that Tariq 
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Blackwell went up to the individual that was with [Brown] 

because they knew each other. Shortly after, a verbal argument 

ensued between [Brown] and Tariq Blackwell. Jerrica Fulton and 

Shanique Hawkins told Tariq Blackwell to walk away from the 

argument and he did. However, [Brown] continued arguing as 

the individuals walked away. Shanique Hawkins testitifed that 

[Brown] yelled “it ain’t over with” as they turned the corner to 

return to her home for the evening.

The next day on May 13, 2006 at approximately 10:00 

a.m. Jerrica Fulton and Tariq Blackwell walked towards Porter 

Street to go to the store. Jerrica Fulton testified that as they 

approached the corner of Marshall and Porter Street[s] she could 

see [Brown], his friend Terry and an unidentified female standing 

on the other side. Immediately, [Brown] and Tariq Blackwell 

began to exchange words. Tishea Green, an eyewitness to the 

shooting confirmed that she also witnessed [Brown] and Tariq 

Blackwell get into a verbal argument. Tishea Green was on her 

way to work and walking on Porter Street when she witnessed 

the verbal argument and saw the deceased approach [Brown] 

and say, “I heard you were looking at my girlfriend in a type of 

way that you weren’t supposed to. You said something to her.” 

Then, Tishea Green testified that she saw the deceased punch 

[Brown] in his face. After [Brown] was punched in the face the 

two began to wrestle and held each other in a bear hug. Jerrica 

Fulton testified less than five seconds after she saw [Brown] pull 

out a gun, but did not see him fire it because she fell to the 

floor. Both witnesses testified that they heard several gunshots, 

but neither saw [Brown] shoot Tariq Blackwell.

Police Officer Michael Duffy testified at this trial and stated 

that when he arrived at the scene of the shooting at 

approximately 12:30 p.m., he observed “a black male lying in 

the middle of the highway who appeared to be shot.” Officer 

Duffy went to Jefferson Hospital where Tariq Blackwell was 

pronounced dead. In the hospital Officer Duffy was approached 

by Jerrica Fulton and was given the piece of paper with 

[Brown]’s name and phone number on it. Officer Duffy testified 

that he was able to ask Jerrica Fulton a few questions to 

ascertain who the shooter was in this incident. Jerrica Fulton 

told Officer Duffy [Brown] had shot Tariq Blackwell, about the

incident as she had witnessed it and how the argument started.

PCRA Court Opinion, 7/22/2014, at unnumbered 1-4.
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Brown was subsequently arrested and charged with one count each of 

murder, carrying a firearm without a license, and PIC. On April 21, 2008, a 

jury found Brown guilty of all charges, including murder in the first degree. 

The trial court immediately sentenced him to a term of life imprisonment for 

murder, and a concurrent term of three to six years’ imprisonment for the 

firearms violation.3 A panel of this Court affirmed Brown’s judgment of 

sentence on September 16, 2009, and the Pennsylvania Supreme Court 

subsequently denied his petition for review. See Commonwealth v. 

Brown, 986 A.2d 1249 (Pa. Super. 2009) (unpublished memorandum), 

appeal denied, 998 A.2d 958 (Pa. 2010). 

On August 19, 2010, Brown filed a timely, pro se PCRA petition, 

followed by an amended petition on December 28, 2010. Counsel was 

appointed on May 6, 2011, and filed four additional amended petitions on 

September 9, 2011, June 22, 2012, October 19, 2012, and March 15, 2013, 

respectively. All of Brown’s petitions asserted allegations of trial counsel’s 

ineffectiveness. On November 21, 2013, counsel filed a supplement to his 

fourth amended petition, which included affidavits from three proposed 

witnesses. On January 24, 2014, the PCRA court issued notice of its intent 

to dismiss Brown’s petition without first conducting an evidentiary hearing 

pursuant to Pa.R.Crim.P. 907. Brown filed a pro se response on February 5, 

____________________________________________

3 No further penalty was imposed for the PIC conviction.
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2014, followed by a motion for an evidentiary hearing on March 6, 2014. 

Thereafter, on March 21, 2014, the PCRA court dismissed Brown’s petition. 

This timely appeal followed.4

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4 On April 24, 2014, the PCRA court ordered Brown to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

After requesting an extension of time until the relevant transcripts were 

transcribed, counsel filed a concise statement on June 2, 2014. The PCRA 

court subsequently filed an opinion on July 22, 2014.

The ensuing two-year delay in the disposition of this appeal resulted 

from the following. On June 12, 2014, the appeal was dismissed by this 

Court when Brown failed to file a docketing statement. However, the appeal 

was reinstated on July 9, 2014, after Brown filed a motion for 

reconsideration. Thereafter, on July 28, 2014, Brown filed a pro se motion 

requesting permission for counsel to withdraw so that he could proceed pro 

se. On August 27, 2014, this Court entered a per curiam order remanding 

the case to the PCRA court to conduct a Grazier hearing. See 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Thereafter, the PCRA 

court conducted a Grazier hearing on October 24, 2014, at which time 

Brown decided not to represent himself pro se. 

A revised briefing schedule was established by this Court, and counsel 

failed to timely file a brief on Brown’s behalf. Accordingly, on August 19, 

2015, this Court, once again, remanded the appeal to the PCRA court to 

determine whether PCRA counsel had abandoned Brown on appeal. See

Order, 8/19/2015. Meanwhile, counsel filed a supplemental Rule 1925(b) 

statement on September 16, 2015. On March 14, 2016, this Court entered a 

per curiam order stating the PCRA court failed to comply with our August 19, 

2015, order, and directing the PCRA court to file a response within seven 

days. See Order, 3/14/2016. The PCRA court did so, and filed a 

supplemental opinion on March 21, 2016. Thereafter, a revised briefing 

scheduled was established.

However, on April 18, 2016, Brown filed a second request for a 

Grazier hearing. This Court denied the request on May 2, 2016. 

Subsequently, on June 24, 2016, when PCRA counsel again failed to comply 

with the briefing schedule, this Court remanded the appeal again to the 

PCRA court to determine whether counsel abandoned Brown. See Order, 

(Footnote Continued Next Page)
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“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. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). A PCRA court may dismiss a 

petition “without an evidentiary hearing if there are no genuine issues of 

material fact and the petitioner is not entitled to relief.” Id. at 1284. 

(citations omitted).

Where, as here, all of the claims on appeal assert trial counsel’s 

ineffectiveness, we must bear in mind:

“In order to obtain relief under the PCRA premised upon a 

claim that counsel was ineffective, a petitioner must establish 

beyond a preponderance of the evidence that counsel’s 

ineffectiveness ‘so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have 

taken place.’” Commonwealth v. Payne, 794 A.2d 902, 905 

(Pa. Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When 

considering such a claim, courts presume that counsel was 

effective, and place upon the appellant the burden of proving 

otherwise. Id. at 906. “Counsel cannot be found ineffective for 

failure to assert a baseless claim.” Id. 

To succeed on a claim that counsel was ineffective, 

Appellant must demonstrate that: (1) the claim is of arguable 

merit; (2) counsel had no reasonable strategic basis for his or 

her action or inaction; and (3) counsel’s ineffectiveness 

(Footnote Continued) _______________________

6/24/2016. On July 25, 2016, Brown filed an application in this Court for 

the appointment of new PCRA counsel. This Court denied the application 

based upon its June 24, 2016, remand to the PCRA court. Thereafter, on 

August 15, 2016, the PCRA court responded to this Court’s remand order, 

and stated PCRA counsel had not abandoned Brown. Counsel subsequently 

filed an appellate brief on November 7, 2016. 
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prejudiced him. Commonwealth v. Allen, 833 A.2d 800, 802 

(Pa. Super. 2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013). “To 

demonstrate prejudice, a petitioner must show that there is a reasonable 

probability that, but for counsel’s actions or inactions, the result of the 

proceeding would have been different.” Commonwealth v. Mason, 130 

A.3d 601, 618 (Pa. 2015).

Brown first argues counsel was ineffective for failing to call character 

witnesses who would have attested to his reputation for non-violence. See

Brown’s Brief at 5. Although Brown names only one proposed witness in his 

brief (Diro Fields), counsel forwarded to the PCRA court affidavits from three 

proposed witnesses – Diro Fields, Ashley Reed (Brown’s sister), and Dorothy 

Brown (Brown’s mother) – who all stated they were known to trial counsel,5

and available to testify at Brown’s jury trial regarding Brown’s good 

reputation for non-violence. See Affidavits, filed 11/21/2013. Accordingly, 

Brown contends trial counsel was ineffective for failing to call these 

witnesses. 

Our review of a challenge to counsel’s stewardship for failing to 

present character witnesses is well-settled:

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5 Specifically, the witnesses averred they were “named in the jury selection 

transcript.” See Affidavits of Ashley Reed, Dior Fields, and Dorothy Brown, 

filed 11/21/2013. Our review of the transcript from Brown’s voir dire 

supports this claim. See also N.T., 4/15/2008 at 15; 4/16/2008 at 16.
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The failure to call character witnesses does not constitute per se 

ineffectiveness. In establishing whether defense counsel was 

ineffective for failing to call witnesses, appellant must prove:

(1) the witness existed; (2) the witness was available to 

testify for the defense; (3) counsel knew of, or should 

have known of, the existence of the witness; (4) the 

witness was willing to testify for the defense; and (5) the 

absence of the testimony of the witness was so prejudicial 

as to have denied the defendant a fair trial.

Commonwealth v. Treiber, 121 A.3d 435, 463-464 (Pa. Super. 2015) 

(quotations omitted).

Although the affidavits submitted by Brown’s proposed witnesses 

appear to minimally satisfy his burden of proving the availability and 

willingness of the witnesses to testify to his good character, we conclude 

Brown is nevertheless entitled to no relief. Indeed, Brown fails to explain 

how the absence of these witnesses’ testimony was so prejudicial that he 

was denied a fair trial. See id. His string citation to several cases, which 

state character evidence alone can create reasonable doubt, is simply 

insufficient to establish prejudice under the facts of his case. See Brown’s 

Brief at 5.6

Moreover, the PCRA court also explained Brown “stated that trial 

counsel was ineffective because [counsel’s] reason for not calling [these] 

character witness[es] was due to a prior drug conviction.” PCRA Court 

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6 We emphasize Brown’s “argument” on this issue consists of one, half-page, 

paragraph. See Brown’s Brief at 5.
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Opinion, 7/22/2014, at unnumbered 6. Brown appears to confirm this in his 

brief, but maintains counsel’s asserted basis for failing to present character 

testimony is flawed because “drug convictions are not relevant to character 

testimony for peacefulness and non-violence.” Brown’s Brief at 5. 

The Pennsylvania Supreme Court has held: 

While character witnesses may not be impeached with specific 

acts of misconduct, a character witness may be cross-examined 

regarding his or her knowledge of particular acts of misconduct 

to test the accuracy of the testimony. 

Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (citation 

omitted). In Commonwealth v. Jones, 636 A.2d 1184 (Pa. Super. 1994), 

appeal denied, 668 A.2d 1125 (Pa. 1995), a panel of this Court determined 

trial counsel had a reasonable basis for failing to present character witnesses 

who were aware of the defendant’s prior drug activity. The panel opined: 

[I]n the instant case, counsel may well have concluded that 

potential cross-examination of appellant’s character witnesses 

regarding the drug activity in which appellant was engaged 

offered dangers which outweighed the doubtful value of their 

testimony regarding appellant’s alleged reputation for nonviolence.

Id. at 1190. The same is true here.7 Consequently, Brown is entitled to no 

relief on this claim. 

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7 We note that in Jones, supra, the ineffectiveness claim was raised via

post-trial motions, and the court had conducted a hearing on the defendant’s 

motions. See Jones, supra, 636 A.2d at 1189. Nevertheless, at the 

hearing, counsel was unable “to recall the specific basis for” failing to 

present character witnesses. Id. While no hearing was conducted in the 

present case, Brown does not dispute that his prior drug conviction was one 

(Footnote Continued Next Page)
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Next, Brown claims trial counsel was ineffective for failing to object 

when the public, specifically his sister Ashley Reed, was excluded from the 

courtroom during his jury voir dire. Brown argues the court’s actions 

constituted a structural violation of his Sixth Amendment right to a public 

trial. Brown’s Brief at 5.

The Sixth Amendment to the Constitution provides, in relevant part, 

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy 

and public trial[.]” U.S. CONST., Amend. VI. The United States Supreme 

Court has held that a defendant’s right to a public trial extends to the voir 

dire of prospective jurors. Presley v. Georgia, 558 U.S. 209 (2010).

We conclude Brown is entitled to no relief. First, his proof of this 

constitutional violation is lacking. The affidavit signed by Brown’s sister 

states the following: “I was [] peacefully attending the first trial when court 

officials made me and other family members leave the courtroom without 

authority to do so.” Affidavit of Ashley Reed, filed 11/21/2013. Reed did 

not specify she was excluded during Brown’s voir dire, and, in fact, the PCRA 

court stated in its opinion that it had reviewed the record in this matter and 

found “no evidence that this exclusion occurred.” PCRA Court Opinion, 

7/22/2014, at unnumbered 7. Our independent review of the transcript 

(Footnote Continued) _______________________

of the reasons why trial counsel chose not to present character evidence. 

See Brown’s Brief at 2; Statement of Errors Complained of on Appeal, 

6/2/2014, at 1; Fourth Amended Petition for Post-Conviction Relief, 

3/15/2013, at 1.
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from the two-day voir dire supports the court’s finding. Furthermore, Brown 

provides no citation to the notes of testimony in his brief.

Moreover, even assuming, arguendo, we were to find the trial court 

improperly excluded Reed from voir dire, Brown has made no attempt to 

establish he was prejudiced as a result of the court’s actions. As our 

Supreme Court explained:

[V]arious courts have found a violation of the right to a public 

trial to be in the nature of a structural error. See, e.g., Owens 

v. United States, 483 F.3d 48, 63 (1st Cir. 2007). It is well 

recognized, however, that such violation is a particular type of 

structural error which is waivable. See, e.g., Peretz v. United 

States, 501 U.S. 923, 936, 111 S.Ct. 2661, 2666, 115 L.Ed.2d 

808 (1991) (citing Levine v. United States, 362 U.S. 610, 619, 

80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960), for the proposition 

that “failure to object to closing of courtroom is [a] waiver of 

[the] right to [a] public trial”). Since Appellant did not object to 

the [exclusion of the public], the only cognizable aspect of his 

claim is that of deficient stewardship, as to which he must 

establish prejudice. 

Commonwealth v. Rega, 70 A.3d 777, 786-787 (Pa. 2013) (some citations 

and footnote omitted). Here, Brown has utterly failed to demonstrate he 

was prejudiced by the purported exclusion of his sister from voir dire. 

Therefore, this issue is meritless.

Brown raises three additional claims of trial counsel’s ineffectiveness, 

namely for: (1) failing to assert Brown’s innocence and argue self-defense; 

(2) presenting a diminished capacity defense without Brown’s consent; and 

(3) failing “to pursue sufficiently prior inconsistent statements of Tishea 

Green and to challenge Shanique Hawkin’s statement to police.” Brown’s 
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Brief at 6. However, these issues were not included in Brown’s June 2014 

Rule 1925(b) concise statement, Rather, Brown raised these claims for the 

first time in the supplemental statement he filed on September 16, 2015, 

after this Court remanded the appeal to the PCRA court to determine if 

counsel had abandoned Brown. See supra n.3. See also Order, 

8/19/2015. 

It is axiomatic that “in order to preserve their claims for appellate 

review, [a]ppellants must comply whenever the [PCRA] court orders them to 

file a Statement of Matters Complained of on Appeal pursuant to 

Pa.R.A.P.1925” and “[a]ny issues not raised in a Pa.R.A.P.1925(b) statement 

will be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 

(Pa. 2005), quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 

1998). Moreover, Rule 1925 provides for the filing of a supplemental 

concise statement only “upon application” of the trial court and “for good 

cause shown.” Pa.R.A.P. 1925(b)(2). Indeed, this Court has explicitly 

stated an appellant must seek the trial court’s permission before filing a 

supplemental statement. See Commonwealth v. Ray, 134 A.3d 1109, 

1115 (Pa. Super. 2016) (pro se defendant’s untimely concise statement filed 

after trial court’s opinion did not preserve issues for review when he “failed 

to file a corresponding motion seeking permission to supplement his 

previously-filed Notice [of issues on appeal] by filing a Pa.R.A.P. 1925(b)

statement nunc pro tunc.”). 
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Here, the PCRA court noted in its opinion that Brown failed to seek its 

permission to file the September 16, 2015, supplemental statement. The 

court explained: “While this matter was remanded by the Superior Court for 

a determination of counsel’s involvement, it was not an invitation to amend 

the [Rule] 1925(b) statement that was ordered by this Court to be filed no 

later than May 15, 2014.” PCRA Court Opinion, 3/21/2016, at 5. 

Consequently, the PCRA court concluded Brown’s last three issues were 

waived. 

We are constrained to agree. When the case was remanded by this 

Court in August of 2015, counsel did not request permission from the PCRA 

court to file a supplemental concise statement. Rather, it appears counsel 

informed the PCRA court by email that Brown wanted counsel to continue to 

represent him, and wanted him to amend the concise statement. See

Response to Order, 3/18/2016, email from counsel dated 9/14/2015. The 

email, however, was not a request of the PCRA court for permission to file a 

supplemental statement.8 Therefore, Brown’s additional claims are waived 

on appeal.

Nevertheless, we note the PCRA court addressed these additional 

claims in its opinion, and concluded they were meritless. See PCRA Court 

Opinion, 3/21/2016, at 6-9. Were we to review these issues on appeal, we 

____________________________________________

8 Moreover, counsel’s email does not allege any “good cause” for doing so. 

See Pa.R.A.P. 1925(b)(2).
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would agree. With respect to Brown’s contention that counsel was 

ineffective for failing to assert Brown’s innocence and present a self-defense 

argument, the PCRA court concluded the evidence against Brown was 

“overwhelming[,]” noting Brown “faced evidence which included testimony 

by three eyewitnesses, a photo found on his phone of him [] brandishing a 

matching gun, and testimony that [Brown] had spent months under an 

assumed identity.” PCRA Court Opinion, 3/21/2016, at 8. Accordingly, the 

PCRA court concluded “trial counsel’s decision to argue for a voluntary 

manslaughter conviction [was] reasonable in light of the overwhelming 

evidence against [Brown].” Id. Furthermore, we note Brown fails to explain 

what evidence would have supported a claim of self-defense. See Brown’s 

Brief at 6. Therefore, we would find this claim fails. 

Next, with respect to Brown’s assertion that trial counsel presented a 

diminished capacity defense without his permission, the PCRA court found 

“no evidence in the record that a diminished capacity defense was 

presented.” PCRA Court Opinion, 3/21/2016, at 7. Brown again fails to 

direct this Court to the evidence in the record supporting such a defense. 

See Brown’s Brief at 6. Again, we would conclude warrants no relief. 

Lastly, with respect to Brown’s assertion that counsel was ineffective 

for failing to challenge the statements of Tishea Green and Shanique 

Hawkins, we note Brown failed to raise the issue of Green’s prior 

inconsistent statement in either his original, or untimely supplemental 

concise statement. Moreover, with regard to Hawkins’s statement, Brown 
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fails to explain in his brief how counsel should have challenged her 

statement. See Brown’s Brief at 6. Accordingly, were we to address these 

final three claims, we would agree with the PCRA court that no relief is 

warranted.

Therefore, because we find no error or abuse of discretion on the part 

of the PCRA court in dismissing Brown’s petition, we affirm the order on 

appeal. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/5/2017